MAJORITY  RULE  AND  THE  JUDICIARY 


MAJORITY  RULE 
AND  THE  JUDICIARY 

AN  EXAMINATION  OF  CURRENT  PROPOSALS  FOR 

CONSTITUTIONAL   CHANGE  AFFECTING 

THE  RELATION  OF  COURTS 

TO  LEGISLATION 


BY 

WILLIAM  L.  RANSOM 

OF  THE  NEW  YORK  BAR 


WITH  AN  INTRODUCTION  BY 

THEODORE  ROOSEVELT 


NEW  YORK 

CHARLES  SCRIBNER'S  SONS 
1912 


COPYRIGHT,  1912,  BY 
CHARLES  SCRIBNER'S  SONS 


Published  August,  1912 


TO  THE  LAMENTED 

WILLIAM    HENRY   MOODY 

WHOSE  BRIEF  SPAN  OF  SERVICE 
IN  THE  SUPREME  COURT  OF  THE  UNITED  STATES,  ENDED  BY  MOST  UNTIMELY 

DISABILITY  AND  DEATH,  GAVE  PROMISE  OF  A  PUBLIC  USEFULNESS 
ENTITLING  HIS  NAME  TO  RANK  WITH  THAT  OF  JOHN  MARSHALL  AS  EXPONENT  OF  A 

VIRILE  AND  PROGRESSIVE  INTERPRETATION  OF  THE  CONSTITUTION 
WHOSE  "UNCHANGING  PROVISIONS"  HE  CONCEIVED  THEREBY  TO  BE  "ADAPTABLE 

TO  THE  INFINITE  VARIETY  OF  THE 
CHANCING  CONDITIONS  OF  OUR  NATIONAL  LIFE" 


254680 


PREFACE 

THE  attitude  of  some  State  courts  toward  what  is 
generically  spoken  of  as  "welfare"  or  "regulative" 
legislation  has  led,  chiefly  in  those  States,  to  several 
proposals  of  constitutional  change  affecting  the 
relation  of  courts  to  legislation.  The  people  have 
been  most  reluctant  to  admit  that  either  their  con- 
stitutions or  any  instrumentality  of  government 
created  by  their  constitutions  should  bar  them  per- 
manently from  any  pathway  of  progress  and  justice 
which  is  pointed  out  by  the  experience,  and  called 
for  by  the  conscience,  of  this  and  other  civilized 
nations.  The  electorate  has  to  no  small  degree 
lost  patience  with  public  men  and  political  par- 
ties, who,  like  Dr.  Nicholas  Murray  Butler  at  the 
New  York  Republican  State  Convention  at  Roch- 
ester in  April,  1912,  "urge"  that  a  Working- 
men's  Compensation  Law  be  enacted  in  this  State, 
but  suggest  no  way  and  support  no  plan  for  bring- 
ing that  about,  especially  when  so  zealous  a  ten- 
word  advocacy  of  such  legislation  is  preceded  and 
followed  by  a  thousand-word  plea  for  the  resolute 
maintenance,  evidently  "without  amendment,"1 

1  "It  is  said  the  constitution  was  made  in  the  eighteenth  century 
by  men  who  lived  under  conditions  long  since  passed  away.  There- 
fore, the  constitution  is  outgrown.  It  must  be  adjusted,  the  phrase 

vii 


viii  Preface 

of  the  very  "constitutional  guaranties"  which  the 
highest  court  of  the  State  had  but  recently  con- 
strued l  forever  to  prevent  any  legislation  based 
upon  the  essential  principle  underlying  a  Working- 
men's  Compensation  Act! 

The  constructive  proposals  which  have  been 
made  are  entitled  to  be  explained  and  considered 
upon  their  merits.  Examination  may  show  them 
— some  or  all — to  be  unsuitable  or  unwise;  but 
they  may  not  be  brushed  aside  as  "the  ravings  of 
Bedlam"  2  or  as  the  proposals  of  "political  patent- 
medicine  men  who  are  ignorant  of  ordinary  laws 
of  political  and  social  growth."3  The  fact  is,  of 
course,  that  to  no  small  degree  these  suggestions  of 
organic  change,  as  well  as  the  legislation  for  which 
it  is  sought  by  them  to  clear  the  way,  have  been 
formulated  or  perfected  in  the  seminaries  of  Amer- 
ican universities  and  colleges,  and  that  their  ad- 
vocacy has  largely  been  led  by  members  of  the 
faculties  of  such  institutions,  whom  Dr.  Butler  and 
his  "Rochester  platform"  would  doubtless  hesitate 
to  condemn  more  specifically. 

now  runs,  to  human  rights.  .  .  .  The  fact  is  that  in  the  history  of 
mankind  some  things,  after  long  toil  and  tribulation  are  settled  once 
for  all.  They  neither  invite  nor  permit  amendment  or  improvement." 

1  Ives  v.  South  Buffalo  Ry.  Co.,  201  New  York  Reports,  page  271. 

2  "The  Supreme  Issue  of  1912:"     Address  of  Dr.  Nicholas  Murray 
Butler  as  temporary  chairman  of  the  Republican  State  Convention 
at  Rochester,  N.  Y.,  April  9,   1912;    published  in  the  New  York 
Tribune,  April  IO,  1912. 

3  Ibid. 


Preface  ix 

A  great  many  things  are  being  said  about  these 
proposals  which  no  one  can  seriously  mean  and 
most  persons  will  be  glad  soon  to  forget.  That  is 
probably  because  their  discussion  has  been  pro- 
jected into  a  political  campaign.  Ambition  is  a 
strong  stimulus  to  superlatives — about  the  other 
fellow  and  "his"  "issues,"  especially  if  he  comes 
from  some  other  part  of  the  country.  The  at- 
mosphere of  political  discussion  makes  it  easy  for 
men  to  figure  it  all  out  that  some  one  is  about  to 
"lay  the  axe  at  the  foot  of  the  tree  of  well-ordered 
freedom,"  when  in  fact  no  "axe"  in  sight  menaces 
anything  more  than  the  "foot  of  the  tree"  of  their 
own  ambitions  and  the  fancied  interests  of  some  of 
their  friends.  The  discovery  that  some  one — on 
the  other  ticket,  in  primary  or  election — was  about 
to  "lay  the  axe"  to  something  cherished  by  the 
electorate,  has  been  a  frantic  feature  of  every 
national  political  campaign  whose  "literature"  it 
has  been  possible  to  trace. 

The  truth  of  the  matter  is,  of  course,  that  no 
considerable  number  of  our  people  are  contem- 
plating any  step  which  would  in  fact  "destroy"  or 
"threaten"  the  essential  "independence"  and  "in- 
tegrity" of  our  courts  or  the  "stability"  and 
"soundness"  of  their  administration  of  impartial 
justice.  If  there  is  any  branch  of  the  government 
about  which  the  American  people  have  been  gen- 


x  Preface 

uinely  "conservative,"  it  has  been  the  judiciary; 
and  this  has  been  far  more  true  of  the  rank  and  file 
of  the  people — the  men  in  the  village  or  on  the 
farm,  and  the  men  in  the  enterprises  of  the  in- 
dustrial centres — than  of  the  men  who  find  it  easy 
to  feel  that  an  attack  on  their  own  continuance  in 
office  or  power  is  an  attack  on  the  continuance  of 
the  institutions  they  have  weakly  served.  In  the 
country  as  a  whole,  there  are  so  many  ways  in  which 
the  courts  come  into  close  and  cherished  relations 
with  the  life  of  the  average  man  and  woman1 — for 
example,  in  the  administration  of  the  estate  of  the 
dead  relative,  and  the  care  of  the  interests  of  the 
minor  child — that  it  is  idle  to  suggest  that  any 
proposal  under  serious  consideration  by  the  people 
themselves  is  directed  "at  the  foot  of  the  tree  of 
well-ordered  freedom. " 

In  a  government  by  the  people,  we  fight  out  re- 
curring issues  of  governmental  power  and  policy, 
oftentimes  with  a  frantic  feeling  that  a  new  and 
unheard-of  "menace"  must  be  met,  else  business 
will  be  prostrated,  institutions  fall,  and  our  coun- 
try turned  over  to  some  rampant  form  of  "radical- 
ism." It  is  always  disconcerting,  afterward,  to  go 
back  to  our  histories  and  our  records  and  there  find 
that  Don  Quixote  has  often  ridden  full-tilt  at  wind- 

1  This  fact  is  impressively  elaborated  upon  by  Governor  Simeon  E. 
Baldwin,  of  Connecticut,  in  "The  American  Judiciary"  (1905),  at 
page  219. 


Preface  xi 

mills;  that  the  same  issues  have  been  fought  out 
before,  with  the  same  superlative  phrases;  and 
that  the  same  dire  prophesies  were  dismally  made, 
only  to  be  proved  quite  unfounded  in  the  years 
which  followed.  To  illustrate:  Personally,  I  do 
not  believe  in  the  application  of  the  principle  of 
the  "recall"  to  judicial  officers.  I  sympathize 
with  many  of  the  arguments  which  are  being  so 
earnestly  urged  against  "  the  judicial  recall. "  Yet 
when  I  hear  it  contended  that  adoption  of  "the 
recall  of  judges"  would  mean  the  wholesale  and 
whimsical  removal  of  judicial  officers  and  make  our 
judges  "vacillating  and  craven,"  I  am  unable  to 
believe  that  either  our  people  or  our  judges  are  of 
that  mould  of  men.  For  I  have  it  in  mind  that, 
long  years  ago — in  Massachusetts1  and  Vermont, 
for  example — the  same  cry  was  raised  on  the  same 
issue,  in  almost  identical  phrases,  directed  against 
rather  more  objectionable  forms  of  the  "judicial 
recall"  than  are  now  being  agitated,  but  that,  when 
the  voters  of  these  conservative  commonwealths 
rejected  the  counsels  of  great  leaders  of  the  bar  and 
adopted  decidedly  "radical"  expedients,  no  "axe" 
was  laid  "at  the  foot"  of  anything  except  the  rep- 
utation of  some  lawyers  as  prophets  of  disaster! 
We  can  afford  to  frankly  face  and  fairly  con- 

1  The  proceedings  in  the  Massachusetts  Constitutional  Convention 
of  1820  are  extensively  quoted  from  on  pages  85  to  91,  post. 


xii  Preface 

sider  any  suggestion  which  may  come  from  the 
people,  looking  to  a  better  adjustment  in  the  con- 
stitutional relation  of  the  courts  to  the  law-making 
power.  There  is  a  prevalent  feeling — if  not  yet  a 
settled  conviction — that  some  readjustment  in  this 
respect  is  not  far  distant.  Why  this  has  come 
about,  and  what  lines  this  change  may  most  suit- 
ably follow  at  this  time,  will  be  dealt  with  in  Mr. 
Roosevelt's  introductory  chapter  to  this  volume 
and  in  the  author's  analysis  of  the  legal  and  his- 
torical basis  for  such  a  readjustment.  It  will  be 
sufficient  here  to  say  that  a  great  many — probably 
a  large  majority — of  our  people  have  become  defi- 
nitely conscious  that  in  some  way  either  their  con- 
stitutions or  some  of  their  courts  are  standing  in 
the  way  of  things  which  it  should  be  possible  for 
any  civilized  government  to  do,  and  are, definitely 
questioning  whether  the  onrush  of  economic  and 
social  change  has  not  brought  a  real  and  irrepressi- 
ble conflict  between  the  needs  of  the  people  in  the 
present  day  and  certain  constitutional  provisions 
— notably  the  historic  guaranty  of  "due  process 
of  law" — at  least  as  construed  by  some  courts. 

I  do  not  believe  that  the  great  majority  of  our 
people  have  ever  assented,  or  will  ever  assent,  to 
any  extreme  of  view  as  to  the  judiciary  or  as  to  the 
maintenance  of  our  constitutions  in  essential  vigor. 
On  the  one  hand,  they  give  no  sanction  to  any  sug- 


Preface  xiii 

gestion  that  all  our  constitutions  should  be  made 
"a  fluid  thing"  or  that  the  power  of  courts  to  re- 
fuse enforcement  to  legislation  contravening  the 
organic  law  should  be  taken  away,  and  they  are 
as  "conservative"  about' accomplishing  such  an 
abridgement  indirectly,  through  the  wholesale 
adoption  of  frittering  constitutional  amendments, 
as  directly,  by  the  explicit  taking  away  of  judicial 
power.  On  the  other  hand,  they  flatly  refuse  to 
believe  that  the  "stability"  of  our  institutions  and 
the  "maintenance  of  our  form  of  government" 
require  that  the  pronouncement  of  a  court,  once 
made,  upon  a  question  of  governmental  power  or 
policy,  should  be  "  beyond  the  power  of  a  majority, 
or  of  all  the  people,"  to  change  or  correct.  And 
so  it  is  that,  not  yet  definitely  or  clearly  formu- 
lated, perhaps,  but  none  the  less  positive  and  un- 
mistakable, there  has  come  the  feeling  that  the 
right  of  the  matter  lies  somewhere  in  the  middle 
ground. 

That  is  frankly  the  point  of  view  of  the  present 
volume,  and  that  is,  as  I  understand  it,  the  position 
of  Theodore  Roosevelt,  in  proposing  (i)  that  in  the 
determination  of  what  is  "due  process"  under  our 
State  constitutions,  there  shall  be  an  explicit  con- 
stitutional recognition1  of  what  Freund  has  called 

1  An  illustrative  form  of  such  an  "explicit  constitutional  recog- 
nition" is  set  out  on  page  115,  post. 


xiv  Preface 

"the  matured  and  deliberate  popular  will,"1  and 
what  the  Supreme  Court  of  the  United  States  has 
recognized  as  "the  prevailing  morality  or  strong 
and  preponderant  opinion";2  and  (2)  that  as  a 
potential  check  upon  judicial  misapprehension 
on  the  question  whether  any  particular  statute 
is  a  valid  exercise  of  the  "police  power,"3  the 
people  shall  be  empowered,  upon  the  petition  of 
a  specified  number  of  electors,  themselves  to  "re- 
define" what  is  "due  process",  in  the  sense  of  de- 
termining— by  the  method  which  is  obviously  the 
most  direct,  concrete,  and  conclusive — whether 
the  "matured  and  deliberate  popular  will"  does 
or  does  not  hold  the  statute  in  question  to  be 
vital  to  the  public  welfare  and  so  within  the 
"police  power."  That  the  people  are  resolving 
to  re-establish  now,  beyond  perad venture,  their 
power  to  put  in  force  such  humanitarian  measures 
as  they  may  deliberately  determine  to  be  most 
suitable  for  present-day  needs,  the  temper  of  the 
current  discussion  leaves  no  doubt.  If,  as  it 
seems,  this  proper  power  of  a  deliberate  popular 

1  "The  Police  Power,"  by  Ernst  Freund,  page  17. 

2  Noble  State  Bank  v.  Haskell,  219  United  States  Reports,  at 
page  in;  quoted  on  page  64,  post. 

'The  "police  power"  is  the  term  commonly  used  to  indicate  the 
general  "regulative"  powers  of  government — the  power  to  place 
"restraints  and  burdens"  upon  persons  or  private  property,  in  order 
to  secure  the  "general  welfare."  For  excerpts  from  judicial  deci- 
sions as  to  "due  process"  and  the  "police  power,"  see,  respectively, 
pages  52  to  54  and  page  59  rt.  seq.,  post. 


Preface  xv 

majority  has  been  doubted  or  denied  in  some 
States,  it  will  be  put  beyond  cavil  now.  But  the 
people  seek  a  safety-valve  and  not  an  explosion! 
They  wish  to  make  it  suitably  possible  to  do  just 
things  in  a  conservative  and  constructive  man- 
ner, so  that  there  may  be  no  danger  of  a  pent-up 
outbreak  to  accomplish  the  same  ends  in  a  sweep- 
ing and  destructive  manner. 

May  it  not  be  that  the  proposal  identified  with 
the  name  of  Theodore  Roosevelt  will  prove  the 
"safety-valve"  of  social  legislation?  We  do  not 
wish  to  take  down  all  constitutional  restrictions  on 
an  entire  class  or  category  of  legislation,  good  or 
bad,  merely  to  take  one  sound,  wise  law  out  from 
under  the  ban.  The  people  do  not  seek  a  safety- 
valve  like  the  whistle  on  the  Mississippi  River 
steamboat  described  by  Lincoln,  which  stopped 
the  boat  whenever  the  whistle  was  blown,  nor  do 
they  want  the  safety-valve  of  orderly  progress  in 
legislation  "tied  down'9  beyond  the  power  of  the 
people  to  utilize  when  needed.  A  method  of  deal- 
ing only  with  the  specific  statute  when  the  need 
arises,  rather  than  framing  broad  generalizations 
to  take  all  similar  statutes  out  of  the  prohibition 
pronounced  by  the  court,  has  much  to  commend  it 
to  the  conservative  common-sense  of  our  citizens. 
With  those  who  believe  that  through  the  medium 
of  the  "general  amendment"  method,  so  adjusted 


xvi  Preface 

as  to  permit  of  genuine  popular  control,  the  people 
may,  when  they  wish,  remove  any  barriers  which  a 
court  may  place  in  the  way  of  "welfare"  or  "re- 
gulative" legislation,  I  have  no  quarrel.  The 
principle,  rather  than  the  method,  is  fundamental. 
But  the  farmer  does  not  demolish  his  fences  or  take 
them  down,  that  he  may  lead  his  horse  from  pas- 
ture to  barn.  Only  the  Chinese  of  Charles  Lamb's 
fable  burned  the  sty  when  they  wished  to  eat  roast 
pig.  Is  it  not  better  that  the  people  should  pass, 
directly  and  by  way  of  potential  ultimate  check, 
upon  the  public  necessity  and  social  justice  of  a 
particular  law  which  some  court  may  reject,  than 
that,  in  advance  and  for  all  time,  broad  and  paralyz- 
ing terms  of  general  exemption  should  be  written 
into  our  historic  guaranties?  Why  break  out  a 
window,  instead  of  merely  raising  it,  for  ventilation? 
Therefore,  for  those  who  take  this  view  of  the  possi- 
ble efficacy  of  the  "general  amendment"  method,  I 
have  at  least  this  question,  whether  Mr.  Roosevelt's 
proposal  may  not,  upon  analysis,  be  found  to 
offer,  not  a  more  "radical"  method,  but  a  more 
suitable  method — less  sweeping,  not  so  far-reach- 
ing, attended  by  fewer  possibilities  of  unforseen 
implications,  yet  concretely  effective  in  achieving 
the  ends  of  justice  under  the  law. 

This  volume  is,  in  essential  outline,  an  amplifica- 
tion of  an  address  delivered  before  the  Brooklyn 


Preface  xvii 

Bar  Association  on  April  12,  1912,  under  the  title 
of  "The  People  and  the  Police  Power:  An  Ad- 
vocacy of  the  Direct  Expression  of  the  Popular 
Will  as  the  Ultimate  Guide  in  Determining  the 
Scope  of  the  Regulative  or  '  Police*  Powers  of  the 
State  Governments."  From  a  lawyer's  point  of 
view,  that  title  was  more  accurately  descriptive  of 
the  central  proposition  discussed  than  is  the  title 
given  to  this  volume.  At  the  same  time,  it  is  not 
believed  that  there  will  be  found  in  such  a  discus- 
sion anything  upon  which  any  citizen  may  not  form 
an  intelligent  judgment.  The  proposal  of  Colonel 
Roosevelt,  and  this  volume,  which  has  been  written 
to  make  clear  its  proper  relations  to  the  American 
judicial  and  constitutional  system,  are  submitted 
with  a  firm  belief  in  the  principle  declared  before 
the  American  Bar  Association  by  a  distinguished 
Federal  judge — William  Howard  Taft — in  1895: 

If  the  law  is  but  the  essence  of  common-sense, 
the  protest  of  many  average  men  may  evidence  a 
defect  in  a  legal  conclusion  though  based  on  the 
nicest  legal  reasoning  and  profoundest  learning. 

No  prefatory  word  upon  this  subject  could  prop- 
erly be  closed  without  frank  acknowledgment  of 
debt,  in  many  details,  to  Theodore  Roosevelt, 
whose  stirring  advocacy  of  the  proposal  identified 
with  his  name  has  won  for  it  already  a  large  popu- 


xviii  Preface 

lar  approval,  and  to  Dean  William  Draper  Lewis, 
of  the  Law  School  of  the  University  of  Pennsyl- 
vania, whose  high  standing  as  a  teacher  of  pro- 
gressive legal  doctrine  gave  great  weight  to  his 
prompt  and  scholarly  espousal  of  Colonel  Roose- 
velt's constructive  proposal.  Anyone  who  writes 
concerning  the  relation  of  legal  doctrine  to  social 
progress  feels  also  his  obligation  to  those  splendid 
jurists,  State  and  Federal — some  of  them  in  the 
nation's  Supreme  Court,  but  many  others  little 
known  outside  of  limited  jurisdictions — who  have 
resolutely  given  twentieth-century  meaning  to  old 
concepts,  and  thereby  have  made  all  republican 
institutions  again  the  available  instruments  of 
justice. 

WILLIAM  L.  RANSOM. 

NEW  YORK,  August  I,  1912. 


CONTENTS 

PAGE 

PREFACE    .    .    *..... vii 

INTRODUCTION  BY  THEODORE  ROOSEVELT    ...        i 

I.    WHEN    THE     PEOPLE    Discuss    THEIR 

COURTS     ,'«.•••. 27 

II.    THE  PRESENT  ISSUE  AS  TO  THE  JUDICIARY      38 

III.  THE  "POLICE  POWER"  AS  CONSTRUED  BY 

STATE  AND  FEDERAL  COURTS    ...      42 

IV.  THE  ULTIMATE  SUPREMACY  OF  A  DECI- 

SIVE POPULAR  MAJORITY  UNDER  THE 
CONSTITUTION ^.      70 

V.    THE  RECALL  OF  JUDGES 80 

VI.    THE  POWER  TO  HOLD  LEGISLATION  UN- 
CONSTITUTIONAL    .......      93 

VII.     DIRECT  POPULAR  RE-DEFINITION  vs.  GEN- 
ERAL CONSTITUTIONAL  AMENDMENT  .      98 

VIII.    MR.    ROOSEVELT'S    PROPOSAL    DEFINED 

AND  ILLUSTRATED 107 

xix 


xx  Contents 


PAGE 


IX.  THE  TESTIMONY  OF  EXPERTS  AS  TO  PRAC- 
TICAL ADVANTAGES  119 

X.    MR.    ROOSEVELT'S    PROPOSAL   AND   THE 

TRADITIONS  OF  JUDICIAL  PROCEDURE     126 

XI.  THE  CONSERVATISM  AND  PRACTICAL  AD- 
VANTAGES OF  THIS  METHOD  OF  "  PO- 
LICE POWER"  DEFINITION  ....  139 

XII.  SOME  PRACTICAL  OBJECTIONS  TO  THIS 
METHOD  OF  "POLICE  POWER"  DEF- 
INITION CONSIDERED  .  .  •  •  J*  •  *53 

XIII.    MR.   ROOSEVELT'S    PROPOSAL  AND   THE 

FUNDAMENTALS  OF  GOVERNMENT     .     161 

TABLE  OF  CASES 179 

INDEX  *  .    .         181 


INTRODUCTION 


INTRODUCTION 

Mr.  Ransom  has  rendered  a  service  of  marked 
value  to  the  commonwealth  by  his  clear  exposi- 
tion of  the  meaning  and  the  need  of  the  proposi- 
tion for  a  referendum  to,  or  review  by,  the  people 
themselves  of  certain  classes  of  judicial  decisions 
by  State  courts.  In  discussing  this  matter,  and 
all  similar  matters,  really  able  and  broad-minded 
lawyers — men  of  the  stamp  of  Dean  Lewis,  of 
the  University  of  Pennsylvania  Law  School,  and 
Dean  Kirchway,  of  the  Columbia  University  Law 
School — can  render  service  such  as  no  laymen  can 
render. 

But  no  lawyer  can  render  this  service  unless  he 
remembers,  as  Mr.  Ransom  emphasizes,  that  the 
question  is  one  which  concerns  the  people  as  a 
whole.  Neither  the  members  of  the  bar  nor  the 
men  on  the  bench  have,  as  such  and  of  right,  any 
greater  concern  in  the  matter  than  other  citizens. 
The  constitution  is  the  property  of  the  people,  not 
of  any  one  class  of  the  people.  Its  proper  ad- 
ministration and  interpretation  concern  immedi- 


4 


•  introduction 


ately  and  vitally  the  people  as  a  whole.  From  this 
stand-point,  judges  and  lawyers  are  merely  instru- 
ments for  securing  the  right  solution  of  certain 
questions  in  which  all  good  citizens  are  equally 
concerned.  How  completely  the  self-styled  re- 
publican leaders  of  to-day  have  wandered  from 
the  principles  of  Abraham  Lincoln  is  shown  by 
their  refusal  to  apply  to  this  question  the  prin- 
ciples which  Lincoln  laid  down  in  discussing  the 
Dred  Scott  case.  He  scornfully  refused  to  treat 
the  decision  of  the  Supreme  Court  in  that  case  as 
permanently  binding  on  the  people,  or  as  a  mat- 
ter only  for  judges  and  lawyers;  and  he  explic- 
itly laid  down  the  doctrine  that  the  people  were 
the  masters  of  the  courts,  and  that  it  was  for  the 
people  and  not  for  the  courts  to  determine  the 
principles  and  policies  in  accordance  with  which 
our  constitution  was  to  be  interpreted  and  our 
government  administered. 

Our  prime  concern  is  to  get  justice.  When  the 
spirit  of  mere  legalism,  the  spirit  of  hair-splitting 
technicality,  interferes  with  justice,  then  it  is  our 
highest  duty  to  war  against  this  spirit,  whether 
it  shows  itself  in  the  courts  or  anywhere  else. 
The  judge  has  no  more  right  than  any  other  offi- 


Introduction  5 

cial  to  be  set  up  over  the  people  as  an  irremovable 
and  irresponsible  despot.  He  has  no  more  right 
than  any  other  official  to  decide  for  the  people 
what  the  people  ought  to  think  about  questions 
of  vital  public  policy,  such  as  the  proper  handling 
of  corporations  and  the  proper  methods  of  secur- 
ing the  welfare  of  farmers,  wage  workers,  small 
business  men,  and  small  professional  men.  If  in 
any  State  judges  have  given  such  bad  service 
that  it  is  necessary  to  render  them  liable  to  re- 
moval by  the  people,  I  should  not  hesitate  to 
adopt  the  principle  of  the  recall,  a  principle  which 
for  a  century  and  a  third  has  been  explicitly  rec- 
ognized and  insisted  on  as  righteous  in  the  Mas- 
sachusetts constitution.  But  where,  as  in  New 
York  and  Illinois,  the  trouble  has  been  with  the 
heads  rather  than  the  hearts  of  the  judges,  where 
the  courts  have  delivered  absurd  and  iniquitous 
decisions  against  the  interests  of  the  people  in 
various  constitutional  cases  although  the  judges 
themselves  are  reputable  and  honorable  men,  what 
is  needed  is  not  to  recall  the  judge  to  private 
life,  but  to  make  his  decision — or  the  constitu- 
tion as  he  interprets  it — square  with  justice  and 
common-sense. 


6  Introduction 

It  is  the  people,  and  not  the  judges,  who  are 
entitled  to  say  what  their  constitution  means,  for 
the  constitution  is  theirs,  it  belongs  to  them  and 
not  to  their  servants  in  office — any  other  theory 
is  incompatible  with  the  foundation  principles  of 
our  government.  If  we,  the  people,  choose  to 
protect  tenement-house  dwellers  in  their  homes, 
or  women  in  sweat-shops  and  factories,  or  wage- 
earners  in  dangerous  and  unhealthy  trades,  or  if 
we,  the  people,  choose  to  define  and  regulate  the 
conditions  of  corporate  activity,  it  is  for  us,  and 
not  for  our  servants,  to  decide  on  the  course  we 
deem  wise  to  follow.  We  cannot  take  any  other 
position  without  admitting  that  we  are  less  fit 
for  self-government  than  the  people  of  England, 
of  Canada,  of  France,  who  possess  and  exercise 
this  very  power.  But  the  plan  I  propose  for  our 
people  seems  to  me  more  democratic,  and  from 
every  stand-point  better,  than  the  plan  in  vogue  in 
France,  England,  and  Canada,  where  the  legislat- 
ure is  supreme  over  the  courts.  I  propose  to  make 
the  people  supreme  over  both. 

Two  or  three  months  ago,  some  emment  cor- 
poration lawyers  of  New  York  undertook  the  for- 
mation of  what  they  styled  an  Independent  Ju- 


Introduction  7 

diciary  Association.  They  proposed,  to  use  their 
own  words,  "to  combat  the  spread  of  two  ideas," 
namely,  the  recall  of  judges  and  the  referendum 
to  the  people  of  a  certain  class  of  cases  of  consti- 
tutional decisions;  and  they  asserted,  in  Presi- 
dent Taft's  words,  that  these  ideas  laid  "the  axe 
at  the  foot  of  the  tree  of  well-ordered  freedom." 
On  April  10,  1912,  speaking  of  this  proposal,  at 
Philadelphia,  I  said: 

Many  of  the  signers  are  distinguished  men, 
standing  high  in  their  community;  but  we  can 
gain  a  clew  as  to  just  what  kind  of  well-ordered 
freedom  they  have  in  mind,  the  kind  of  "freedom" 
to  the  defence  of  which  they  are  rushing,  when  we 
see  among  the  signers  of  this  call  the  names  of 
attorneys  for  a  number  of  corporations  not  dis- 
tinguished for  a  high-keyed  sense  of  civic  duty, 
nor  for  their  disinterested  conduct  toward  the  pub- 
lic; such  as,  for  instance,  the  Standard  Oil  Com- 
pany, the  Sugar  Trust,  the  American  Tobacco 
Company,  the  Metropolitan  Traction  Company 
of  New  York,  and  certain  defunct  corporations, 
the  looting  of  which  has  passed  into  the  history 
of  financial  and  stock-jobbing  scandal  and  forms 
one  of  its  blackest  chapters.  I  find  also  the  name 
of  one  of  the  attorneys  for  the  Northern  Securities 
Company,  which  some  years  ago  was  dissolved  at 
the  suit  of  the  government  instituted  by  my  di- 


8  Introduction 

lection;  I  notice  the  name  of  the  attorney  for 
the  New  York  Stock  Exchange;  and  I  do  not 
overlook  that  of  a  member  of  the  bar  of  New  York 
who  some  years  ago  was  denounced  by  the  very 
papers  now  applauding  him  and  his  associates,  as 
a  retained  " accelerator  of  public  opinion"  in  favor 
of  certain  measures  of  the  Metropolitan  Street 
Railway  Company,  which  at  that  time  were  under 
general  denunciation  in  New  York  as  "  traction 
grabs."  These  embattled  attorneys  for  the  de- 
fence of  special  interests  oppose  my  proposal 
solely  because  they  make  it  their  life  work  to 
uphold  privilege  against  the  cause  of  justice,  and 
against  the  interests  of  the  people  as  a  whole. 
They  speak  as  if  the  matter  were  one  only  for 
the  decision  of  lawyers.  I  hold  that  it  is  one  for 
the  decision  of  the  people  as  a  whole,  and  that 
lawyers  have  no  rights  in  the  matter  beyond  those 
of  any  other  good  citizens.  I  hold  that  some 
basis  of  accommodation  must  be  found  between  the 
declared  policy  of  the  States  on  matters  of  social 
justice  within  the  proper  scope  of  regulation  in 
the  interest  of  health,  of  decent  living,  and  work- 
ing conditions  and  morals,  and  the  attempt  of  the 
courts  to  substitute  their  own  ideas  on  these  sub- 
jects for  the  declarations  of  the  people  made 
through  their  elected  representatives  in  the  sev- 
eral States. 

I  do  not  question  the  good  purpose  of  some  of 
the   eminent   corporation   attorneys   of  whom   I 


Introduction  9 

speak.  But  they  are  intelligent  men,  trained  in 
their  profession,  and  certain  of  them  have  at  least 
a  smattering  of  knowledge  of  the  constitutions  of 
our  own  and  other  countries.  On  the  assump- 
tion that  they  have  both  intelligence  and  knowl- 
edge, it  is  impossible  to  credit  them  with  good 
faith  in  the  fears  that  they  have  expressed  as 
above  referred  to,  except  on  the  supposition  that 
their  long  experience  as  attorneys  for  corporations 
has  finally  rendered  them  genuinely  unable  to  un- 
derstand justice,  and  genuinely  unable  to  think 
of  a  judge  except  as  an  instrument  devised  to 
protect  privilege  against  the  rights  of  the  people 
by  invoking  the  technicalities  of  the  law  for  the 
purpose  of  preventing  the  obtaining  of  justice 
under  the  law. 

This  is  a  strong  statement,  and  I  would  not 
make  it  of  ordinary  men  who  are  misled  by  read- 
ing those  New  York  papers  owned  or  controlled 
by  Wall  Street,  and  who  are  misled  by  their  be- 
lief in  the  men  whom  these  papers  speak  of  as 
leaders  of  the  bar.  As  regards  these  citizens,  I 
have  nothing  to  say  except  that  I  wish  it  were 
possible  for  them  to  have  access  to  channels  of 
information  which  were  not  wilfully  poisoned. 
But  the  case  is  wholly  different,  so  far  as  the  emi- 
nent lawyers  themselves  are  concerned.  These 


io  Introduction 

men  are  not  to  be  excused  on  the  plea  of  igno- 
rance. My  proposal  is  for  the  exercise  of  the 
referendum,  or  right  of  review,  by  the  people  them- 
selves in  a  certain  class  of  decisions  of  constitu- 
tional questions  in  which  the  courts  decide  against 
the  power  of  the  people  to  do  elementary  justice. 
When  under  the  "police  power"  or  "general  wel- 
fare" powers  of  government  the  legislature  of  a 
given  State  passes  an  act  to  do  social  or  industrial 
justice,  and  the  State  court  declares  that  the  law  is 
unconstitutional,  then  I  propose  that  the  people 
themselves,  the  masters  of  both  legislature  and 
court,  shall,  after  due  deliberation,  decide  which 
of  their  servants  is  to  be  sustained,  so  far  as  the 
particular  act  is  concerned.  When  men  of  trained 
intelligence  call  this  "putting  the  axe  to  the  foot 
of  the  tree  of  well-ordered  freedom,"  it  is  quite 
impossible  to  reconcile  their  assertion  both  with 
good  faith  and  with  even  reasonably  full  knowl- 
edge of  the  facts. 

All  that  is  necessary  to  do  in  order  to  prove  the 
correctness  of  this  statement  is  to  call  attention 
to  plain  and  obvious  facts.  Consider  the  present 
practice  in  various  countries  in  which  there^is 
substantially  the  same  "well-ordered  freedom"  as 


Introduction  1 1 

in  our  own  land — for  instance,  the  republic  of 
France — and  various  great  English-speaking  com- 
monwealths of  the  British  Empire,  such  as  Eng- 
land and  Canada,  all  of  which  are  governed  by 
their  parliaments  in  substantially  the  same  man- 
ner that  we  are  governed.  In  these  countries  the 
decision  of  the  legislature  on  constitutional  ques- 
tions is  absolute  and  not  subject  to  action  by  the 
judiciary,  and  whenever  the  courts  make  a  deci- 
sion which  the  legislature  regards  as  establishing 
a  construction  of  the  constitution  which  is  un- 
warranted, the  legislature,  if  it  chooses,  can  by 
law  override  that  construction  and  establish  its 
own  construction  of  the  constitution.  Not  long 
ago  this  very  method  was  adopted  in  England. 
On  that  occasion  the  courts  had  held  that  labor 
unions  could  be  treated  as  corporations  and  sued, 
and  money  taken  from  them  by  process  of  law. 
Parliament  at  once  passed  a  law  overriding  the 
decision  and  summarily  declared  that  the  consti- 
tution should  thereafter  be  construed  by  the  courts 
in  the  directly  opposite  sense  to  the  construction 
which  they  had  adopted. 

My  proposal  is  merely  to  secure  to  the  people 
the  right  which  the  Supreme  Court  of  the  United 


1 2  Introduction 

States,  speaking  through  Mr.  Justice  Holmes,  in 
the  Oklahoma  Bank  Cases,  said  they  undoubtedly 
should  possess.  My  proposal  is  that  the  people 
shall  have  the  power  to  decide  for  themselves,  in 
the  last  resort,  what  legislation  is  necessary  in 
exercising  the  "police  powers,"  the  "general  wel- 
fare" powers,  so  as  to  give  expression  to  the  gen- 
eral morality  and  the  general  or  common  opinion  of 
what  is  right  and  proper.  In  England,  Canada, 
and  the  other  countries  I  have  mentioned,  no  one 
dreams  that  the  courts  have  a  right  to  express  an 
opinion  in  such  matters,  as  against  the  will  of  the 
people  shown  by  the  action  of  the  legislature.  I 
do  not  propose  to  go  so  far  as  this.  I  merely  pro- 
pose to  make  legislature  and  court  alike  respon- 
sible to  the  sober  and  deliberate  judgment  of  the 
people,  who  are  masters  of  both  legislatures  and 
courts.  This  proposal  is  precisely  and  exactly  in 
line  with  Lincoln's  attitude  toward  the  Supreme 
Court  in  the  Dred  Scott  case,  and  with  the  doc- 
trine he  laid  down  for  the  rule  of  the  people  in  his 
first  inaugural  as  President. 

I  am  not  dealing  with  any  case  of  ordinary  jus- 
tice as  between  man  and  man.  Nor  am  I  speaking 
of  the  recall  of  judges  by  popular  vote,  a  measure 


Introduction  13 

which  I  personally  think  should  not  be  adopted  in 
any  community  unless  it  proves  impossible  in  any 
other  way  to  get  the  judges  to  do  justice — and  I  will 
add  that  nothing  will  so  tend  to  strengthen  the 
movement  for  the  recall  of  judges  as  action  seek- 
ing to  buttress  special  privilege  in  the  courts  and 
to  make  them  the  bulwarks  of  injustice  instead 
of  justice.  I  am  advocating  the  introduction  of 
a  system  which  will  obviate  the  need  of  such  a 
drastic  measure  as  the  recall.  But  it  must  be  un- 
derstood that  my  purpose  is  to  get  justice,  and  if 
justice  is  resolutely  denied  by  the  courts,  I  would 
adopt  the  recall  or  any  other  expedient  which  was 
found  necessary  for  the  achievement  of  the  pur- 
pose. 

If  in  any  case  the  legislature  has  passed  a  law 
under  the  "police  power"  for  the  purpose  of  pro- 
moting social  and  industrial  justice,  and  the  courts 
declare  it  in  conflict  with  the  "due  process"  clause 
of  the  State  constitution  as  laid  down  by  the 
people,  then  I  propose  that  after  a  period  of  due 
deliberation,  a  period  which  could  not  be  less  than 
two  years  after  the  election  of  the  legislature  which 
passed  the  original  law,  the  people  shall  themselves 
have  the  right  to  declare  whether  or  not  the  pro- 


14  Introduction 

posed  law  is  to  be  treated  as  constitutional.  It  is  a 
matter  of  mere  terminology  whether  this  is  called  a 
method  of  "construing"  or  "applying"  the  consti- 
tution, or  "a  quicker  method  of  getting 'the  con- 
stitution amended."  It  is  certainly  far  superior 
to  the  ordinary  method  of  getting  the  constitution 
amended,  because  it  is  quick,  definite,  and  certain. 
It  will  apply  merely  to  the  act  at  issue,  and  there- 
fore will  be  definite  and  clear  in  its  action;  whereas 
actual  experience  with,  for  instance,  the  Four- 
teenth Amendment  to  the  national  constitution 
has  shown  us  that  an  amendment  passed  by  the 
people  with  one  purpose  may  be  given  by  the 
courts  a  construction  which  makes  it  apply  to 
wholly  different  purposes  and  in  a  wholly  differ- 
ent manner.  The  Fourteenth  Amendment  has 
been  construed  by  the  courts  to  apply  to  a  mul- 
titude of  cases,  to  which  it  is  positive  that  the 
people  who  passed  the  amendment  had  not  the 
remotest  idea  of  applying  it. 

Some  of  our'opponents  say  that  under  my  pro- 
posal there  would  be  conflicting  interpretations 
by  the  people  of  the  constitution.  In  the  first 
place,  this  is  mere  guess-work  on  the  part  of  our 
opponents.  In  the  next  place,  the  people  could 


Introduction  1 5 

not  decide  in  more  conflicting  fashion,  could  not 
possibly  make  their  decisions  conflict  with  one  an- 
other to  a  greater  degree,  than  has  actually  been 
the  case  with  the  courts.  No  popular  vote  could 
reverse  an  earlier  popular  vote  more  completely 
than  did  the  later  decisions  in  the  Supreme  Court, 
in  the  Legal  Tender  Cases  and  the  Income  Tax 
Cases,  when  compared  with  the  earlier  decisions. 
At  this  moment  the  courts  of  Massachusetts,  Iowa, 
and  Washington,  and  the  Supreme  Court  of  the 
nation,  construe  the  clauses  of  the  constitution  to 
permit  one  thing,  and  the  Court  of  Appeals  in  New 
York  construes  identically  the  same  language  to 
mean  the  direct  reverse;  and  this  not  as  regards 
unimportant  matters,  but  as  regards  matters  of 
vital  importance  to  the  welfare  of  hundreds  of 
thousands  of  citizens,  in  cases  like  the  Working- 
men's  Compensation  Act  and  the  act  limiting  the 
hours  of  labor  for  women  in  factories. 

The  best  way  to  test  the  merits  of  my  proposal 
is  to  consider  a  few  specimen  cases  to  which  it 
would  apply.  Within  the  last  thirty  years  the 
Court  of  Appeals  of  New  York  has  been  one  of 
the  most  formidable  obstacles  in  the  way  of  get- 
ting industrial  justice  which  men  who  strive  for 


1 6  Introduction 

justice  have  had  to  encounter.  Among  very  many 
other  laws  which  this  court  has  made  abortive,  or 
decided  not  to  be  laws,  on  the  ground  that  they 
conflict  with  the  constitution,  are  the  following: 

First. — The  law  for  preventing  the  manufacture 
of  tobacco  in  tenement  houses.  The  decision  of 
the  court  in  this  case  retarded  by  at  least  twenty 
years  the  work  of  tenement-house  reform,  and  was 
directly  responsible  for  causing  hundreds  of  thou- 
sands of  American  men  and  women  now  alive  to  be 
brought  up  under  conditions  of  reeking  filth  and 
squalor,  which  immeasurably  decreased  their 
chance  of  turning  out  to  be  good  citizens.  Yet 
this  decision  was  rendered  by  well-meaning  men 
who  knew  law,  but  who  did  not  know  life,  and 
who  based  their  decision  on  the  ground  that  they 
would  not  permit  legislation  to  interfere  with  the 
"sanctity  of  the  home" — the  home  in  question, 
in  many  cases,  having  precisely  the  sanctity  which 
attaches  to  one  foul  room  in  which  two  large  fam- 
ilies, one  with  a  boarder,  live  and  work  day  and 
night,  the  tobacco  they  manufacture  being  sur- 
rounded with  every  form  of  filth. 

Second. — The  court  held  unconstitutional  the 
law  under  which  a  girl  was  endeavoring  to  recover 


Introduction  17 

damages  for  the  loss  of  her  arm,  taken  off  because 
dangerous  machinery  was  not  guarded.  In  this 
case  the  judges  announced  that  they  were  "pro- 
tecting the  girl's  liberty"  to  work  where  she  would 
endanger  life  and  limb  if  she  chose!  Of  course, 
as  the  girl  had  no  liberty  save  the  liberty  of  starv- 
ing or  else  of  working  under  the  dangerous  condi- 
tion named,  the  courts  were  merely  protecting  the 
"liberty"  of  her  employer  to  endanger  the  lives 
of  his  employees,  or  kill,  or  cripple  them  with 
immunity  to  himself.  I  do  not  believe  that  there 
is  an  instance  in  our  entire  history  in  which  a 
majority  of  the  voters  have  shown  such  tyran- 
nous and  callous  indifference  to  the  sufferings  of  a 
minority  as  were  shown  by  these  doubtless  well- 
meaning  judges  in  this  case. 

Third. — When  the  legislature  of  New  York 
passed  a  law  limiting  the  hours  of  labor  of  women 
in  factories  to  ten  hours  a  day  for  six  days  a  week, 
and  forbade  their  being  employed  after  nine  in  the 
evening  and  before  six  in  the  morning,  the  New 
York  Court  of  Appeals  declared  it  unconstitu- 
tional, and  a  malign  inspiration  induced  them  to 
state  in  their  opinion  that  the  time  had  come  for 
courts  "fearlessly  to  interpose"  a  barrier  against 


1 8  Introduction 

such  legislation.  Fearlessly!  The  fact  was  that 
the  courts  "fearlessly"  condemned  helpless  women 
to  be  worked  at  inhuman  toil  for  hours  so  long 
as  to  make  it  impossible  that  they  should  retain 
health  or  strength;  and  "fearlessly"  upheld  the 
right  of  big  factory  owners  and  small  sweat-shop 
owners  to  coin  money  out  of  the  blood  of  wretched 
girls  whom  they  worked  haggard  for  their  own 
profit.  To  protect  such  wrong-doers  was,  of  course, 
an  outrage  upon  the  decent  and  high-minded 
owners  who  did  not  wish  to  work  the  women 
and  girls  to  an  excessive  degree,  but  who  were 
forced  to  do  so  by  the  competition  of  the  callous 
factory  owners  whom  the  court,  by  this  decision, 
aided  and  abetted  in  their  wrong-doing.  Court 
after  court  in  other  States,  including  so  conserva- 
tive a  State  as  Massachusetts,  have  declared 
such  a  law  constitutional;  yet  the  Court  of  Ap- 
peals in  New  York  declared  the  law  unconstitu- 
tional. No  popular  majority  vote  could  ever  be 
more  inconsistent  with  another  popular  majority 
vote  than  is  the  record  of  the  Court  of  Appeals 
in  the  State  of  New  York  in  this  matter,  when 
compared  with  the  record  of  other  courts  in  other 
States. 


Introduction  19 

Fourth. — The  Workingmen's  Compensation  Act, 
but  a  year  or  two  ago,  was  declared  unconstitu- 
tional by  the  New  York  court,  on  account  of  its 
(alleged)  taking  of  property  without  due  process 
of  law,  although  a  directly  reverse  decision  on 
precisely  similar  language  in  the  constitution,  had 
been  rendered  not  only  by  the  State  courts  of 
Iowa  and  Washington,  but  by  the  Supreme  Court 
of  the  United  States.  This  decision  illustrates  in 
ideal  fashion  what  I  mean  when  I  say  that  human 
rights  stand  above  property  rights  when  the  two 
conflict.  Here  again  it  is  worth  while  to  point 
out  that  no  vote  by  popular  majority  could  ren- 
der the  constitution  more  uncertain  of  construc- 
tion than  the  Court  of  Appeals  rendered  it  by 
making  this  decision,  in  the  teeth  of  the  decision 
of  the  Supreme  Court  of  the  United  States  and  of 
other  State  courts;  and  throughout  our  history 
no  decision  by  a  majority  of  the  people  in  any 
State  has  shown  more  flagrant  disregard  of  the 
elementary  rights  of  a  minority.  No  popular  vote 
in  any  State  has  ever  more  flagrantly  denied  jus- 
tice than  did  this  decision  by  the  highest  court  in 
the  State  of  New  York  but  a  year  or  two  ago. 

Now  in  these  instances  arising  in  New  York, 


2O  Introduction 

the  people  of  the  State  of  New  York,  under  the 
plan  I  propose,  after  due  deliberation,  would  have 
had  an  opportunity  to  decide  for  themselves 
whether  the  constitution,  which  they  themselves 
made,  should  or  should  not  be  so  construed  as 
to  prevent  their  doing  elementary  justice  in  those 
matters.  My  proposal  is  merely  to  give  the  peo- 
ple an  effective  constitutional  weapon  for  use 
against  wrong  and  injustice. 

Our  opponents  in  effect  take  the  position  that 
the  people  have  not  the  right  to  secure  workmen's 
compensation  laws,  or  laws  limiting  the  hours  of 
labor  for  women  in  factories,  or  laws  protecting 
workers  from  dangerous  machinery,  or  laws  mak- 
ing conditions  decent  in  tenement  houses.  It  is  a 
mere  sham  for  any  man  to  say  that  he  approves 
of  such  laws,  so  long  as  he  upholds  the  courts  in 
declaring  them  unconstitutional,  and  fails  to  ap- 
prove thorough-going  action  which  will  give  the 
people  power,  with  reasonable  speed,  to  upset  such 
court  decisions  and  secure  real  and  substantial 
justice. 

In  a  recent  article,  Professor  Scofield  has  shown 
that  the  State  courts  of  Illinois  have  behaved  no 
better  than  the  State  courts  of  New  York  in  these 


Introduction  21 

matters.  He  quotes  the  emphatic  criticism  of 
these  decisions  of  which  I  complain,  by  the  late 
Dean  Thayer  of  the  Harvard  Law  School.  He 
says  that  these  decisions  make  of  the  law  a 
weapon  with  which  the  strong  can  strike  down  the 
weak;  that  they  make  of  the  law  not  a  shield  to 
protect  the  people,  but  a  sword  to  strike  down  the 
people;  that  they  are  arbitrary,  and  that  our  pro- 
test against  them  represents  one  phase  of  the  strug- 
gle against  arbitrary  power  and  in  favor  of  the 
law  of  the  land;  and  he  sees  that  my  proposal  is 
merely  a  constitutional  method  to  restore  to  the 
State  law-making  bodies  the  power  which  the 
Supreme  Court  of  the  nation  says  belongs  to 
them. 

There  are  sincere  and  well-meaning  men  of  timid 
nature  who  are  frightened  by  the  talk  of  the  "tyr- 
anny of  the  majority."  Those  worthy  gentlemen 
are  nearly  a  century  behind  the  times.  It  is  true 
that  De  Tocqueville,  writing  about  eighty  years 
ago,  said  that  in  this  country  there  was  great 
tyranny  by  the  majority.  His  statement  may 
have  been  true  then,  although  certainly  not  to 
the  degree  he  insisted,  but  it  is  not  true  now. 
That  profound  and  keen  thinker,  James  Bryce,  in 


22  Introduction 

"The  American  Commonwealth,"  treats  of  this  in 
his  chapter  on  the  "tyranny  of  the  majority,"  by 
saying  that  it  does  not  exist.  His  own  words  are 
that: 

It  is  no  longer  a  blemish  on  the  American  sys- 
tem, and  the  charges  against  democracy  from  the 
supposed  example  of  America  are  groundless.  The 
fact  that  the  danger  once  dreaded  has  now  disap- 
peared is  no  small  evidence  of  the  recuperative 
forces  of  the  American  government  and  the  healthy 
tone  of  the  American  people. 

I  shall  protest  against  the  tyranny  of  the  ma- 
jority whenever  it  arises,  just  as  I  shall  protest 
against  every  other  form  of  tyranny.  But  at 
present  we  are  suffering  in  no  way  from  the  tyr- 
anny of  the  majority.  We  suffer  from  the  tyranny 
of  the  bosses  and  the  special  interests — that  is, 
from  the  tyranny  of  minorities.  Our  respectable 
opponents  among  the  leaders  of  business  and  the 
bar  are  acting  as  the  servants  and  spokesmen  of 
the  special  interests  and  are  standing  cheek  by 
jowl  with  the  worst  representatives  of  politics, 
when  they  seek  to  keep  the  courts  in  the  grasp 
of  privilege  and  of  the  politicians;  for  this  is  all 
they  accomplish  when  they  prevent  them  from 


Introduction  23 

being  responsible  in  proper  fashion  to  the  people. 
These  worthy  gentlemen  speak  as  if  the  judges 
were  somehow  imposed  on  us  by  Heaven,  and 
were  responsible  only  to  Heaven.  As  a  matter  of 
fact,  judges  are  human  just  like  other  people,  and 
in  this  country  they  will  either  be  chosen  by  the 
people  and  be  responsible  to  the  people,  or  they 
will  be  chosen  by  and  be  responsible  to  the  bosses 
and  the  special  interests  and  the  political  and 
financial  beneficiaries  of  privilege.  In  che  course 
they  are  taking,  the  great  corporation  lawyers  are, 
in  some  cases  certainly  unconsciously,  and  in  other 
cases  I  fear  consciously,  acting  in  behalf  of  the 
special  interests,  political  and  financial,  and  in 
favor  of  privilege,  and  against  the  interests  of  the 
plain  people,  and  against  the  cause  of  justice  and 
of  human  right. 

I  wish  to  keep  the  courts  independent.  But 
at  present  the  independence  of  the  courts  is  far 
more  frequently  menaced  by  special  privilege  than 
by  any  popular  tyranny.  I  wish  to  protect  them 
against  both.  The  safe  way  to  prevent  popular 
discontent  with  the  courts  from  becoming  acute 
and  chronic,  is  to  provide  the  people  with  the 
simple,  direct,  effective,  and  yet  limited  power  to 


24  Introduction 

secure  the  interpretation  of  their  own  constitu- 
tion in  accordance  with  their  own  deliberate  judg- 
ment, by  the  method  I  have  above  outlined. 

THEODORE  ROOSEVELT. 

SAGAMORE  HILL, 
July  i,  1912. 


MAJORITY  RULE  AND  THE  JUDICIARY 


WHEN  THE  PEOPLE  DISCUSS  THEIR 
COURTS 

For  what  may  be  said  to  be  the  third  time  in 
the  constitutional  history  of  the  United  States,  the 
relation  of  the  courts  to  the  people  has  become  a 
general  subject  of  definite  consideration  by  the 
people.  For  the  third  time  in  the  political  history 
of  the  United  States,  the  relation  of  the  people  to 
the  courts  has  become  the  paramount  issue  of  a 
campaign  for  the  presidential  nomination,  and 
probably  for  the  presidential  election  as  well. 
Evidences  are  on  every  hand  that  the  people  have 
determined  themselves  to  scrutinize,  and,  if  need 
be,  to  change  such  elements  of  defect  as  they 
may  discover  in  the  American  judicial  system. 
The  people  have  resolved  themselves  to  sit  in 
judgment  upon  their  own  institutions  for  the  ad- 
ministration of  justice,  as  established  by  their  or- 
ganic law,  and  it  is  accordingly  to  "the  ultimate 
sovereignty  of  the  whole  people,"  and  not  merely 
to  organizations  of  the  bar  or  even  to  the  repre- 
sentative assemblies  of  government,  that  observa- 
tions in  defence  or  criticism  must  now  be  addressed. 

27 


28        Majority  Rule  and  the  Judiciary 

This  recurrence  of  a  period  of  popular  discus- 
sion of  the  judiciary  is  neither  new  nor  surprising. 
The  relation  of  the  courts  to  the  people  is  a  per- 
ennial subject  of  consideration  in  any  government 
in  which  the  people  have  a  voice.  Particularly  is 
this  true  under  a  federal  form  of  government, 
where  the  first  question  asked  as  to  any  legisla- 
tive proposal  concerns  its  permissibility  under  the 
written  constitution,  and  the  determination  of 
what  ought  to  be  done  is  required  to  await  a  con- 
sultation of  precedents  as  to  what  may  be  done. 
Periods  in  which,  as  now,  there  is  a  general  pub- 
lic demand  for  remedial  legislation  along  human- 
itarian lines,  as  called  for  by  changed  and  perhaps 
not-before-anticipated  conditions,  therefore  be- 
come periods  of  especial  popular  interest  in  the 
courts,  and  in  the  restrictions  which  the  courts 
place  on  what  the  people  wish  to  accomplish 
through  the  medium  of  their  government. 

This  fact  is  perhaps  but  another  aspect  of  Dr. 
Dicey's  brilliant  generalization  that  "Federalism 
substitutes  litigation  for  legislation," 1  and  his  accu- 
rate observation  that,  under  the  American  consti- 
tutional system,  the  most  important  issues  of  sov- 
ereign powers  and  policies  are  permitted  to  depend 
on  the  outcome  of  private  suits  between  individ- 

1  "The  Law  of  The  Constitution,"  by  A.  V.  Dicey,  K.C.,  page 
175  (7th  Ed). 


Majority  Rule  and  the  Judiciary        29 

uals — issues  that  in  any  other  government  could 
not  be  raised  in  any  court  at  all.  Whether  it  is 
true,  as  Governor  Simeon  E.  Baldwin,  formerly 
the  highest  judicial  officer  of  Connecticut,  and  a 
staunch  defender  of  the  judicial  power  as  cur- 
rently exercised  in  the  United  States,  recently  ad- 
mitted,1 that  "this  right  of  a  court  to  set  itself  up 
against  a  legislature  ...  is  something  which  no 
other  country  in  the  world  would  tolerate,"  it  is 
not  the  purpose  of  this  volume,  at  this  point  or 
hereafter,  to  discuss.  Equally  foreign  to  the  pur- 
pose of  this  volume  is  the  discussion  recently  re- 
newed with  so  much  vigor,2  whether  it  was  the 
intention  of  the  framers  of  the  Federal  constitution 
to  vest  the  Supreme  Court  with  power  to  decide 
the  "constitutionality"  of  acts  of  Congress  and 
whether  there  was  adequate  legal  and  historical 
basis  for  the  decision  in  Marbury  v.  Madison  3  that 
such  power  had  been  vested.  Certain  it  is  that 
this  power  exists  and  that  few  would  take  it  away, 
but  certain  likewise  that  this  power  of  the  Ameri- 
can courts  to  prevent  the  enforcement  of  measures 

1  "The  American  Judiciary,"  by  Simeon  E.  Baldwin,  pages  103, 
104  (1905). 

2  "The   Power   of   Federal   Judiciary   Over   Legislation,"    by   J. 
Hampden  Dougherty  (1912);    "The  Supreme  Court  and  the  Con- 
stitution," by  Charles  A.  Beard,  (1912).    Cf.  Address  of  Chief  Justice 
Walter  Clark,  of  North  Carolina,  before  the  Law  School  of  the  Uni- 
versity of  Pennsylvania,  on  April  27,  1906,  reprinted  in  the  Congres- 
sional Record  for  July  31,  1911. 

J  j  Cranch's  (U.  S.)  Reports,  page  137. 


30        Majority  Rule  and  the  Judiciary 

passed  by  the  legislature  and  approved  by  the 
executive,  if  that  legislation  falls  under  the  ban 
either  of  the  clear  constitutional  mandate  or  the 
court's  general  conception  of  what  is  fundament- 
ally fair  and  just  in  the  premises,  makes  it  inevi- 
table that  when  the  people  discuss  legislation,  they 
also  discuss  the  limitations  raised  by  the  recorded 
decisions  of  the  courts.  Whenever  the  barometer 
of  the  American  conscience  runs  high,  and  the 
electorate  resolves  upon  efforts  for  the  relief  of 
acute  conditions  that  have  come  with  economic 
and  social  changes,  the  public  concern  with  this 
distinctive  power  of  the  American  courts  is  inten- 
sified, and  the  leaders  of  public  thought  find  them- 
selves summoned  to  discuss  and  justify  before  the 
people  the  orderly  progress  of  our  constitutional 
system. 

A  better  understanding  of  the  present  discus- 
sion will  be  promoted  by  a  brief  analysis  of  the 
issues  which  have  precipitated  similar  discussion 
in  the  past.  More  than  a  mere  coincidence  is  the 
certain  similarity  between  them.  The  first  period 
of  especial  popular  concern  with  the  courts  came 
soon  after  the  founding  of  the  government.  As 
population  pushed  its  way  westward  from  the  At- 
lantic coast  and  new  commercial  and  industrial 
conditions  sprang  into  being,  many  persons  wished 
that  the  new  government  might  minister  to  their 


Majority  Rule  and  the  Judiciary        3 1 

new  needs,  in  ways  that  the  original  colonies  had 
not,  and  the  new  States  could  not,  and  in  ways 
that  had  not  been  contemplated  as  within  the 
chartered  powers  of  the  republic.  The  question 
became,  in  substance: 

Should  the  Federal  constitution  be  construed  so  as 
to  enable  the  Federal  government  to  make  needed  pub- 
lic betterments,  fulfil  its  inherent  functions  for  the 
public  goody  as  the  need  might  arise,  and  enforce  a 
degree  of  conformance  by  the  State  governments  to 
the  standards  laid  down  in  the  Federal  instrument  as 
construed  by  the  Federal  Supreme  Court? 

That  proposal  aroused  a  very  great  deal  of  mo- 
mentary antagonism.  The  leaders  who  had  op- 
posed it  as  a  matter  of  explicit  constitutional  man- 
date, when  the  constitution  was  being  formulated, 
fought  it  no  less  vigorously  when  it  was  suggested 
as  a  rule  of  constitutional  interpretation.  Two 
presidents  of  the  United  States  openly  used  their 
power  and  patronage  to  enforce  a  negative  result.1 
Some  of  the  most  eminent  members  of  the  bench 
and  bar — for  example,  Mr.  Justice  Gibson,  of 
Pennsylvania,  a  truly  great  jurist — fought  long2 
and  bitterly  against  the  progressive  standards  de- 
clared by  Chief  Justice  Marshall  in  the  Supreme 

1  "The  American  Commonwealth,"  by  James  Bryce,  vol.  I,  pages 
268  to  270  (revised  ed.). 

2  Eakin  v.   Raub,   12  Sergeant  and   Rawle's   Reports,   page   330 
(1825). 


32        Majority  Rule  and  the  Judiciary 

Court  of  the  United  States.  In  the  end,  how- 
ever, the  new  trail  blazed  by  the  nation's  court 
became  the  accepted  constitutional  path.  The 
people  in  their  sober  sense  wished  their  govern- 
ment to  be  living  and  vital,  not  dead  and  unre- 
sponsive. 

The  second  period  of  wide-spread  popular  criti- 
cism of  the  courts  came  in  the  middle  of  the  last 
century.  The  old  wine  was  fomenting  in  new  bot- 
tles, and  the  question  was,  in  effect: 

Should  the  Dred  Scott  decision — a  perfectly  good 
decision,  doubtless,  in  law,  judged  by  legal  precedents 
and  merely  legal  theories  of  the  scope  of  the  constitu- 
tion— be  permitted  to  stand  permanently  in  the  way 
of  the  enlightened  public  conscience  of  the  time,  or 
should  existing  precedents  as  to  the  rights  of  private 
property  and  the  claimed  prerogatives  of  some  of  the 
State  governments  be  required  to  give  way,  in  an  or- 
derly fashion,  to  the  prevailing  moral  standards  and 
the  changed  ideas  as  to  what  was  the  just  social  atti- 
tude toward  hitherto  recognized  forms  of  private  prop- 
erty and  private  right  ? 

The  court  said  it  could  only  construe  the  letter 
of  the  law  as  it  found  it.  A  great  mass-meeting 
was  held  in  New  York  City,  at  which  leaders  of 
the  city's  financial  and  professional  life  pronounced 
the  Dred  Scott  decision  perfectly  good  law,  and  de- 
plored all  attacks  upon  it.  "Somebody  has  got 
to  reverse  that  decision,"  shouted  Lincoln  to 


Majority  Rule  and  the  Judiciary        33 

Douglas,  "since  it  is  made,  and  we  mean  to  re- 
verse it,  and  we  mean  to  do  it  peaceably."  But 
the  court's  disregard  of  the  prevailing  moral  stand- 
ards had  provoked  too  far-reaching  consequences 
before  the  processes  of  peaceable  reversal  could 
come  about,  and  the  overthrow  of  the  Dred  Scott 
decision  took  place  under  an  Appomattox  apple- 
tree  and  not  at  the  polls. 

Now  we  are  at  the  threshold  of  a  third  period 
of  marked  popular  discussion  of  the  judiciary. 
There  is,  undoubtedly,  less  of  rancor  and  resent- 
ment, less  of  hate  and  impatience,  and  far  more 
of  good  humor  and  self-restraint,  in  the  present 
discussion  than  there  was  in  that  of  the  past. 
Men  have  a  respect  now  for  the  institution  of  the 
American  judiciary  that  was  plainly  lacking  in  an 
earlier  day.  Present  discussion  and  criticism  is 
generally  of  a  constructive  tenor,  and  the  leader 
who  has  nothing  but  denunciation  and  reproach 
to  offer  usually  receives  little  heed  from  the  masses 
of  the  people.  Yet  the  fact  cannot  be  escaped 
that  there  is  being  said  much  which  is  unfair  and 
destructive,  and  that  there  is  being  advocated 
much  which  is  drastic  and  dangerous,  and  that 
there  is  a  wide-spread  popular  impatience  with  the 
barriers  which  at  least  some  of  the  State  courts 
have  placed  in  the  way  of  salutary  measures  of 


34        Majority  Rule  and  the  Judiciary 

social  reform.  For  example,  in  an  article  contrib- 
uted by  Mayor  William  J.  Gaynor,  of  New  York 
City,  to  the  April,  1912,  issue  of  Bench  and  Bar, 
the  jurist  who  served  for  many  years  with  much 
distinction  on  the  bench  of  the  Supreme  Court  of 
the  State  of  New  York  and  now  occupies  a  posi- 
tion of  executive  responsibility  second  to  but  one 
in  the  United  States,  asks  and  answers  a  question 
now  in  the  minds  of  many,  as  follows: 

Do  the  courts  in  this  country  stand  in  the  way 
of  social  and  economic  progress?  .  .  .  Yes,  they 
do,  and  have  done  so  for  a  long  time.  But  this 
is  nothing  new.  In  all  ages,  and  pretty  much 
everywhere,  the  courts  have  tried  to  apply  their 
legal  rules  of  thumb  to  social,  commercial,  and 
economic  matters,  always  with  signal  failure,  and 
generally  with  injury  to  industry,  commerce,  and 
the  social  good.  Nothing  is  more  distressing  than 
to  see  a  bench  of  judges,  old  men,  as  a  rule,  set 
themselves  against  the  manifest  and  enlightened 
will  of  the  community  in  matters  of  social,  eco- 
nomic, or  commercial  progress.  .  .  .  The  just  feel- 
ing pervading  the  community  is  that  a  bench  of 
judges  is  no  more  competent  than  the  legislature 
to  decide  as  to  the  wisdom  or  necessity  of  laws 
for  the  health,  safety,  and  progress,  and  the  ma- 
terial and  moral  welfare,  of  the  community.  That 
is  a  matter  of  enlightened  opinion  which  the  courts 
have  no  right  to  arrogate  unto  themselves. 

Basic  concepts  of  the  law  are  being  challenged 
and  interrogated — Magna  Charta  itself  is  sum- 


Majority  Rule  and  the  Judiciary        35 

moned  to  the  bar  of  a  public  opinion  insistent  on 
fixing  the  responsibility  for  injustice  which  seems 
to  be  safe-guarded  by  institutions  reared  to  stamp 
it  out.  To  quote  again:  Professor  Edward  S. 
Corwin  of  Princeton  University  recently  declared :  * 

The  truth  of  the  matter  is  that  the  modern  con- 
cept of  due  process  of  law  is  not  a  legal  concept  at  all; 
it  comprises  nothing  more  or  less  than  a  roving  com- 
mission to  judges  to  sink  whatever  legislative  craft 
may  appear  to  them  to  be,  from  the  stand-point  of 
vested  interests,  of  a  piratical  tendency. 

Mere  criticism  of  the  judiciary,  or  of  any  other 
agency  of  government,  is,  of  course,  to  be  deplored 
and  resisted.  Mere  denunciation  is  neither  an 
American  method  nor  an  effective  method  of  deal- 
ing with  problems  of  institutional  reform.  The 
fact,  nevertheless,  remains  as  to  what  the  people 
feel,  and  the  men  who  have  voiced  this  criticism 
from  the  vantage  point  of  honorable  positions  in 
public  life  have  only  spoken  what  was  already,  to 
an  increasing  extent,  in  the  hearts  and  minds  of 
the  people.  Any  one  who  comes  into  close  con- 
tact with  numbers  of  people* — in  trades-unions,  in 
organizations  like  the  Patrons  of  Husbandry  or 
the  Farmers'  Union,  or  in  the  give  and  take  of 
small  or  large  business  transactions — realizes  this 
full  well,  and  no  number  of  resolutions  from  bar 

1  American  Political  Science  Review,  May,  1912. 


36        Majority  Rule  and  the  Judiciary 

associations  or  pronouncements  from  disappointed 
political  leaders  can  change  the  essential  fact. 
The  people  believe  in  their  courts,  they  admire 
and  love  many  of  their  judges,  yet  they  feel, 
vaguely,  perhaps,  but  persistently,  that  something 
is  wrong  about  a  judicial  system  under  which  a  few 
men  obstruct  the  will  and  the  needs  of  the  many 
on  matters  which  seem  to  involve  no  question  of 
substantial  right  at  all,  so  far  as  individuals  are 
concerned,  but  only  divergences  of  view  as  to 
what  is  expedient  and  proper  so  far  as  society  as 
a  whole  is  concerned.  Members  of  the  bar,  in 
common  with  all  others  charged  with  responsibil- 
ity for  the  leadership  of  public  opinion,  will  fulfil 
their  honorable  and  traditional  positions  in  pub- 
lic affairs  only  if  they  avoid,  on  the  one  hand,  the 
radicalism  which  would  do  violence  to  essential 
elements  in  our  judicial  and  constitutional  sys- 
tem, and,  on  the  other  hand,  avoid  also  the  mis- 
taken conservatism  which  led  so  many  to  stand 
stanchly  by  the  Dred  Scott  decision  until  the 
fields  of  Virginia  ran  red  with  blood.  The  discus- 
sion should  rather  be  approached  in  the  equable 
spirit  indicated  by  Mr.  Elihu  Root  in  his  address 
before  the  last  annual  meeting  of  the  New  York 
State  Bar  Association,1  in  January,  1912: 

1  U.  S.  Senate  Document  No.  271,  Sixty-second  Congress,  second 
session  (1912),  reprinted  on  January  22,  1912,  at  the  request  of 
Senator  Smoot. 


Majority  Rule  and  the  Judiciary        37 

One  other  thing  we  can  all  do,  and  that  is  to 
encourage  and  exhibit  the  true  spirit  of  temper- 
ate and  patriotic  consideration,  which  is  the  pri- 
mary requisite  to  success  in  working  out  the  prob- 
lems of  self-government.  Some  of  the  recent  dis- 
cussions of  judicial  conduct  have  been  dignified  and 
temperate  expressions  of  reasoned  opinion  which  we 
must  respect,  though  we  may  not  agree  with  it;  such, 
for  instance,  as  the  recent  article  by  Mr.  Roosevelt 
in  The  Outlook  (referring  to  Mr.  Roosevelt's  earli- 
est advocacy1  of  the  direct  popular  "review"  of 
the  "constitutionality"  of  "police  power"  stat- 
utes). Some  other  expressions,  however,  have 
been  rather  exhibitions  of  violent  temper  and 
appeals  to  prejudice,  imputations  of  sinister  mo- 
tive, and  incitements  to  hatred.  Such  expressions 
we  may  not  hesitate  to  condemn,  and  I  am  glad 
to  believe  that  the  condemnation  will  find  a  re- 
sponse among  the  great  body  of  the  American 
people. 


and  Progress,"  editorial  by  Theodore  Roosevelt:    The 
Outlook,  January  6,  1912,  page  40. 


II 

THE  PRESENT  ISSUE  AS  TO  THE 
JUDICIARY 

It  remains  to  characterize  the  present  agitation 
as  to  the  courts,  and  to  define  the  fundamental 
issues  therein,  in  the  light  of  what  has  gone  before. 
Gradually,  but  none  the  less  surely,  fair-minded 
members  of  the  bar  and  thoughtful  publicists  are 
coming  to  realize  that  the  present  agitation  is  not 
the  product  of  an  ephemeral  unrest  or  a  blind  dis- 
content with  established  institutions,  nor  yet  an 
angry  repudiation  of  the  reasonable  restraints 
which  lie  at  the  basis  of  the  social  order.  Only 
the  shallow  and  the  perverse  can  say  that  the 
present  discussion  reflects  any  such  thing.  Its 
causes  are  deep-seated  and  fundamentally  sound; 
its  recurrence  in  our  political  life  and  legal  evolu- 
tion is  as  normal  and  wholesome  as  it  is  inevitable. 
Only  the  unreasoned,  the  malicious,  the  hateful,  in 
present-day  commentary  on  the  courts  is  to  be 
deplored — the  rest  is  a  healthy  manifestation  of 
the  capacity  of  the  people  for  self-government,  for 
we  see  issues  that  were  productive  of  good  in  the 

38 


Majority  Rule  and  the  Judiciary        39 

past  now  appearing  in  new  phases  to  lead  the 
way  to  greater  national  progress  and   stability. 

The  future  historian  of  the  law,  if  he  correctly 
catches  the  spirit  of  our  people  in  this  hour,  will 
accurately  describe  the  present  agitation  as  the 
deliberate  demand  of  the  people  that,  on  the  ques- 
tion of  what  their  government  may  and  should 
do  for  the  amelioration  of  social  or  economic  needs, 
hereafter  the  mature  sentiment  of  the  majority  of 
the  people  shall  prevail,  if  need  be,  against  what  a 
court  may  think  the  majority  of  the  people  think, 
or  ought  to  think,  should  be  done.  In  other  words, 

The  present  agitation  is  an  effort  to  make  the  per- 
sistent sentiment  of  the  preponderant  majority  of  the 
people  the  ultimate  and  effective  factor  in  determining 
the  scope  of  the  altogether  elastic  "police'9  or  regula- 
tive powers  of  the  State  governments. 

Perhaps  even  more  accurately,  as  will  presently 
be  discussed  in  some  detail,  the  current  agitation 
may  be  described  as 

An  effort  to  bring  up  to  the  broad  and  progressive 
rules  and  methods  of  interpretation  applied  by  the 
Supreme  Court  of  the  United  States,  any  State  courts 
which  may  have  considered  themselves  unable  to  ac- 
cede to  the  social  morality  and  prevailing  public 
opinion  of  the  time,  and  have  felt  constrained  to  in- 
terpose narrow  and  outgrown  conceptions  of  the 
tf  police  power"  and  "due  process"  to  bar  present-day 
measures  for  the  relief  of  present-day  conditions. 


40        Majority  Rule  and  the  Judiciary 

Anything  which  seeks  or  serves  the  supremacy 
of  the  social  conscience  in  matters  of  the  humani- 
tarian activities  of  government  is  in  accord  with 
what  is  popularly  called  "the  progressive  move- 
ment" in  American  political  affairs.  Anything 
which  tends  unreasonably  to  restrain  or  perma- 
nently to  bar  the  supremacy  of  the  sovereign  so- 
cial conscience  falls  under  the  ban  of  popular  chal- 
lenge and  disapproval.  The  line  is  being  clearly 
drawn,  as  to  men  and  institutions,  and  the  search 
for  safe  and  constructive  remedies  will  be  un- 
availing unless  this  ambition  of  the  people  to 
make  their  government  actively  minister  to  social 
justice  is  accepted  as  the  test  of  every  proposal 
for  judiciary  reform. 

There  are,  at  times,  under  discussion  proced- 
ural matters  relating  to  the  law's  delays  and 
technicalities,  which  are  not  embraced  by  the 
above  statement,  and  there  have  been  suggested 
several  constitutional  changes,  in  respects  affect- 
ing the  judiciary,  which  do  not  seem  necessary  or 
wise  for  the  effectuating  merely  of  the  ends  above 
stated,  but  the  proposition  formulated  may  be 
said  to  represent  the  crux  of  the  present  agitation. 
Without  belittling  any  current  proposals  for  the 
elimination  of  the  law's  delays  and  the  simplifica- 
tion of  procedure,  it  remains  true  that  they  offer 
substantially  nothing  for  the  relief  of  the  condi- 


Majority  Rule  and  the  Judiciary        41 

tion  responsible  for  the  present  outcry,  viz.,  what 
Mayor  Gaynor  so  tersely  called3  "the  just  feeling 
pervading  the  community"  that  some  of  the  courts 
have  seen  fit  "to  arrogate  unto  themselves,"  the 
power  to  nullify  the  exercise  of  the  legislative 
power  and  thwart  "the  will  of  the  ultimate  sov- 
ereignty" of  the  people  themselves,  as  to  matters 
clearly  representing  no  fundamental  right  at  all, 
but  only  judicial  disagreement  with  the  legisla- 
tive discretion  and  judicial  reversal  of  the  mani- 
fest political  philosophy  of  the  people. 

3  Bench  and  Bar,  April,  1912,  page  105. 


Ill 

THE  POLICE  POWER  AS  CONSTRUED  BY 
STATE  AND  FEDERAL  COURTS 

To  understand  this  problem  of  the  proper  rela- 
tion of  the  people  to  the  scope  of  the  regulative 
powers  of  their  government,  it  is  necessary  first 
to  state  and  analyze  the  problem  and  see  how  it 
arises. 

Practically  all  of  the  provisions  of  the  State  and 
Federal  constitutions  are,  necessarily,  what  may 
for  convenience  be  termed  "specific"  provisions. 
That  is  to  say,  they  are  definite  and  understand- 
able expressions  of  the  popular  will,  now  or  at 
the  time  they  were  adopted  by  the  people;  their 
meaning  is  ascertainable  with  reasonable  certainty 
— from  their  own  phraseology  or  from  their  con- 
text— under  a  layman's  inspection,  or,  at  most, 
under  accepted  rules  of  legal  interpretation;  and 
they  clearly  and  specifically  empower  or  forbid 
some  department  of  government,  or  the  inhabit- 
ants of  some  governmental  unit,  to  do  a  definite 
and  concrete  thing  or  category  of  things.  Such 
provisions  no  one  suggests  but  that  the  courts 

should  be  permitted  to  interpret  and  apply;    few 

42 


Majority  Rule  and  the  Judiciary        43 

would  suggest  but  that  the  courts  should  be  per- 
mitted to  continue  to  declare  "void"  any  legisla- 
tion which  contravenes  them.  Therefore,  it  may 
be  said  that  constitutional  provisions  of  this  ex- 
plicit and  "specific"  character  are  in  nowise  in- 
volved in  the  present  discussion. 

To  illustrate:  Section  18,  Article  I,  of  the  New 
York  State  constitution  provides,  as  do  similarly 
the  constitutions  of  several  other  States,  that 

The  right  of  action  now  existing  to  recover  dam- 
ages for  injuries  resulting  in  death  shall  never  be 
abrogated,  and  the  amount  recoverable  shall  not 
be  subject  to  any  statutory  limitation. 

This  is  a  simple,  definite  proposition,  with  an 
unvarying  and  unvariable  meaning  under  any 
meaning  of  interpretation,  and,  while  judges,  the 
legislature,  or  the  people  might  now  deem  this 
provision  no  longer  the  safeguard  to  wage-earners 
that  it  was  originally  devised  to  be,  no  one  would 
suggest  that  it  means  anything  but  what  it  says, 
or  that  it  should  be  dealt  with  in  any  manner  but 
the  accustomed  method  of  amendment  or  repeal, 
if  no  longer  desired  by  the  majority  of  the  people. 
The  provision  was  inserted  in  the  State  constitu- 
tion, long  ago,  as  a  measure  of  protection  to  work- 
ingmen,  to  guard  against  the  enactment  of  stat- 
utes such  as  corporate  interests  secured  in  some 


44        Majority  Rule  and  the  Judiciary 

States,  limiting  the  amount  which  might  be  re- 
covered by  the  estates  of  persons  killed  in  the 
course  of  their  employment.  The  adoption  of 
such  a  constitutional  provision  marked  the  stand- 
ard of  progressive  sentiment  at  that  time,  as  to  the 
degree  of  protection  to  be  afforded  to  workingmen 
and  their  families.  At  the  present  time,  of  course, 
the  enlightened  sentiment  of  many  persons  favors 
the  enactment  of  workingmen's  compensation  stat- 
utes, in  which  an  essential  element  is  the  waiving 
of  the  common-law  right  of  recovery  which  sounds 
in  negligence.  In  so  far  as  the  constitutional  pro- 
vision quoted  stands  in  the  way  of  the  establish- 
ment of  a  system  of  compulsory  workingmen's  com- 
pensation,1 it  has  thus  become  now  an  obstruction 
to  the  very  sentiment  which  originally  was  respon- 
sible for  its  embodiment  in  the  organic  law.  Be- 
cause it  represents,  however,  a  concrete  expres- 
sion of  the  fundamental  will  of  the  people,  and 
bears  no  imputation  that  its  application  may  be 
a  mere  substitution  of  the  political  philosophy  of 
the  judges  for  the  social  conscience  of  the  people, 


consequence  of  this  provision,  the  commission  which  framed 
the  statute  held  unconstitutional  in  Ives  v.  South  Buffalo  Ry.  Co. 
(201  New  York  Reports,  page  271),  was  compelled  to  provide  that 
the  act  should  not  be  deemed  to  abrogate  or  destroy  any  right  of  action 
then  existing,  and  that  the  plan  of  compensation  created  by  the  act 
should  apply  only  in  cases  where  the  workingman  waived  his  existing 
rights  of  action  by  accepting  compensation  under  the  act  or  by  in- 
stituting proceedings  under  the  act. 


Majority  Rule  and  the  Judiciary        45 

this  provision  and  those  similarly  "specific"  are 
not  within  the  scope  of  the  present  discussion. 
The  process  of  repeal  is,  as  to  them,  direct  and 
effectual,  if  the  provision  is  no  longer  desired. 

Reference  to  another  provision  of  this  character 
may  be  helpful.  Section  2  of  Article  I  of  the  New 
York  State  Constitution  provides,  as  do  the  con- 
stitutions of  several  other  States,  that 

The  trial  by  jury  in  all  cases  in  which  it  has  been 
heretofore  used  shall  remain  inviolate  forever. 

The  Workingmen's  Compensation  Act  signed  by 
Governor  Charles  Evans  Hughes  was  attacked  as 
unconstitutional  because  violative  of  this  section, 
as  well  as  the  section  which  will  be  next  referred 
to.  It  was  contended  that  the  provisions  of  the 
act  relative  to  the  "scale  of  compensation  "tandj:he 
"settlement  of  disputes"  between  employer  and 
employee  as  to  payments  under  the  act,  were  con- 
trary to  Section  2,  Article  I,  in  that  the  "scale  of 
compensation"  was  designed  to  be  "automati- 
cally" operative,  and  no  provision  was  made  for 
a  jury  trial  as  to  the  employee's  right  to  recover 
anything  from  the  employer,  or  the  proper  amount 
of  such  recovery.  But  this  presented  no  question 
as  to  what  the  constitutional  provision  meant — 
that  was  clear.  The  question  was  what  the  act 
meant — whether  its  somewhat  artful  language  said 


46        Majority  Rule  and  the  Judiciary 

that  there  should  or  should  not  be  a  trial  by  jury 
as  to  such  issues.  Upon  this  question  of  what  the 
act  provided,  the  Court  of  Appeals  was  very  much 
divided,1  and  if  the  court  had  been  compelled  to 
decide  this  point  in  order  to  render  a  decision  in 
the  case,  it  would  be  difficult  to  indicate  the  prob- 
able position  of  a  majority  of  the  judges;  but  the 
court  *found  no  difficulty  in  saying,  without  a  dis- 
sent, that 

If  these  provisions  are  to  be  construed  as  defi- 
nitely fixing  the  amount  which  an  employer  must 
pay  in  every  case  where  his  liability  is  established 
by  statute,  there  can  be  no  doubt  that  they  consti- 
tute a  legislative  usurpation  of  one  of  the  functions 
of  a  common-law  jury. 

Thus  it  may  be  taken  to  be  the  law  in  New  York 
that  Section  2  of  Article  I  of  the  State  constitution 
stands  squarely  in  the  way  of  any  system  of  work- 
ingmen's  compensation  under  which  there  is  an 
elimination  of  a  trial  by  jury  in  favor  of  "auto- 
ma  tic  "  computation,  in  the  statute  or  pursuant  to 
it.  Yet  no  one  would  seriously  suggest  that  any 
other  course  should  be,  or  should  have  been,  pur- 
sued than  to  amend  the  constitutional  provision, 
should  it  be  desired  to  put  in  force  a  statute  which 
abrogates  trial  by  jury  in  this  class  of  cases.  No 
one  would  suggest  that  the  court  should  construe, 

1  201  New  York  Reports,  pages  291  and  292. 


Majority  Rule  and  the  Judiciary        47 

or  the  electorate  be  permitted  to  declare,  that  ex- 
plicit and  unequivocal  language  means  anything 
else  than  what  it  says,  fairly  interpreted.  I  When 
the  meaning  which  the  court  puts  upon  the  lan- 
guage used  is  an  enforcement  of  that  which  the 
people  have,  by  their  direct  vote  thereon,  in  terms 
and  understandingly  declared  to  be  their  sovereign 
will,  the  course  at  once  most  practicable  and  most 
consistent  with  constitutional  government,  is  that 
the  people  shall  proceed  to  make  a  new  statement 
of  their  will  as  to  that  specific  matter,  if  the  old  is 
no  longer  satisfactory^  Even  when  the  specific 
provision  adopted  by  the  people  is  ambiguous  and 
capable  of  more  than  one  interpretation,  the  ques- 
tion is  still  one  of  the  legal  interpretation  of  phrase- 
ology which  was  intended  to  be  sufficient  "within 
the  four  corners  of  the  instrument,"  and  at  most 
involves  no  extrinsic  inquiry  beyond  that  as  to  the 
intention  of  its  framers. 

On  the  other  hand,  the  Federal  constitution, 
and  most  of  the  State  constitutions,  contain  at 
least  one  provision  which  has  no  very  specific  and 
definite  meaning  in  the  language  used  in  the  con- 
stitutions, but  has  a  meaning  only  under  the  as- 
certainment of  various  facts  and  circumstances 
wholly  outside  the  instrument,  so  that  its  mean- 
ing concededly  may,  and  necessarily  does,  vary 
widely  with  the  jurisdiction,  the  litigation,  the 


48        Majority  Rule  and  the  Judiciary 

locality,  and  the  time.  No  argument  is  needed  to 
emphasize  how  different  a  matter  is  the  judicial 
"interpretation"  and  application  of  this  provision 
from  that  of  those  just  quoted.  The  legislative 
act  to  be  tested  by  it  may  be  ever  so  clear  and 
definite,  but  this  proviso  does  not  mean  anything 
definite  or  concrete  at  all,  in  and  of  itself,  or  con- 
sidered in  connection  with  anything  else  in  the 
constitution.  It  represents  no  concrete  expres- 
sion of  the  popular  will  as  to  any  particular  situa- 
tion, and  it  has  a  meaning  and  an  applicability 
only  by  such  standards  of  right  and  propriety  as 
may  be  read  into  it  by  any  agency  of  government 
entrusted  with  its  interpretation.  The  reference 
is,  of  course,  to  the  proviso  of  "due  process"  con- 
tained in  the  so-called  "Bill  of  Rights,"  which  has 
come  down  to  us  from  Magna  Charta. 

Article  V  of  the  Amendments  to  the  Constitu- 
tion of  the  United  States  provides  that 

No  person  shall  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law. 

The  Fourteenth  Amendment  makes  the  enforce- 
ment of  this  constitutional  guaranty  a  sovereign 
Federal  junction  by  providing  that 

No  State  shall  .  .  .  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of  law. 


Majority  Rule  and  the  Judiciary        49 

This  same  prohibition  upon  the  powers  of  the 
States  is,  however,  also  contained  in  most  of  the 
State  constitutions.  For  example:  Section  6  of 
Article  I  of  the  Constitution  of  the  State  of  Ne>v 
York,  provides  that 

No  person  shall  ...  be  deprived  of  life,  liberty, 
or  property  without  due  process  of  law. 

The  language  of  the  constitutional  proviso  which 
the  national  government  and  its  Supreme  Court 
are  authorized  to  enforce  against  the  States  is 
thus  identical  with  that  which  the  States  are  au- 
thorized to  enforce  against  themselves.  Under  the 
American  judicial  system,  a  State  court,  in  pass- 
ing upon  the  validity  of  a  State  statute,  considers 
it  in  the  light  of  the  provisions  of  the  Federal  as 
well  as  the  State  constitution,  and  may  consider 
the  statute  to  be  under  the  ban  of  either  or  both. 
The  Federal  court,  through  the  Fourteenth  Amend- 
ment, may  apply  to  State  legislation  the  acid  test 
of  the  same  "due  process"  clause  as  the  State 
courts  construe.  Has  the  identical  language  been 
accorded  the  same  or  similar  interpretation?  Has 
the  Federal  interpretation  been  followed  in  all  of 
the  States? 

Unfortunately,  as  to  a  considerable  number  of 
the  States,  especially  the  older  and  more  con- 
servative States,  the  answers  to  these  questions 


SO        Majority  Rule  and  the  Judiciary 

must  be  in  the  negative.  Few  will  doubt  that 
the  sentiment  of  the  people,  as  well  as  the  judg- 
ment of  most  experts  in  the  law,  cordially  ap- 
prove the  broad  and  progressive  pronouncements 
that  have  lately  been  made  by  Holmes  and  Moody 
and  Hughes  and  White,  and  the  other  giants  of 
the  nation's  great  court.  There  is  nothing  which 
inspires  a  larger  pride  or  firmer  confidence  in  re- 
publican institutions  than  to  trace  in  the  reported 
decisions  that  court's  splendid  responsiveness  to 
the  changed  economic  and  social  needs  of  our 
time.  Unfortunately,  at  least  some  of  the  State 
courts  have  found  themselves  unable,  for  reasons 
of  controlling  precedent  or  for  other  reasons^ — 
for  the  present  it  will  be  sufficient  to  say  that  no 
aspersion  upon  any  court  or  judge  is  intended  by 
anything  contained  in  these  pages — to  at  all  keep 
pace  with  the  progress  of  the  people's  court,  but 
rather,  as  Mayor  Gaynor  pointed  out  in  the  mag- 
azine contribution  already  referred  to,1  have  ap- 
peared to  place  themselves  resolutely  across  the 
pathway  of  that  progress.  Right  here  is  the  re- 
sponsibility for  what  sometimes  seems,  at  first 
blush,  to  be  a  clamor  against  the  courts  them- 
selves. 

It  is  not  the  purpose  here  to  multiply  or  mag- 
nify instances  of  what  is  meant.     The  cases  are 

1  Bench  and  Bar,  April,  1912,  page  102. 


Majority  Rule  and  the  Judiciary        51 

familiar  in  which,  for  example,  New  York  statutes 
regulating  the  hours  of  labor  in  a  given  trade  or 
the  conditions  of  labor  in  particular  classes  of  in- 
dustrial establishments  have  been  copied  or  closely 
followed  by  other  commonwealths,  and  as  so  en- 
acted in  other  States  have  been  upheld  as  "con- 
stitutional," both  by  the  highest  State  court  and 
by  the  United  States  Supreme  Court;  yet,  when 
tested  in  the  courts  of  the  State  of  their  first  en- 
actment, have  been  held  "unconstitutional"  by  the 
courts  of  New  York  State,  with  no  possible  appeal 
to  the  Supreme  Court  of  the  United  States  from 
a  decision  adverse1  to  the  constitutionality  of  the 
statute,  and,  therefore,  with  the  result  that  what 
is  perfectly  "constitutional"  in  one  State,  under 
the  "due  process"  clause  of  the  Federal  and  State 
constitutions,  is  "unconstitutional"  and  nugatory 
in  another,  the  State  of  its  original  enactment, 
under  the  identical  constitutional  provisions!  It 
is  hard  to  explain,  to  even  the  most  intelligent 
of  citizens,  why  beneficial  legislation  which  the 
Supreme  Court  of  the  United  States  has  held  to 

1  Under  the  Judiciary  Act,  a  decision  in  the  highest  Appellate 
Court  of  a  State,  sustaining  a  right  asserted  under  the  Federal[  con- 
stitution, does  not  present  a  question  which  may  be  carried  to  the 
Federal  Supreme  Court  for  review.  Thus  it  comes  about  that  a 
State  decision  adverse  to  the  constitutionality  of  a  statute  becomes 
thereby  the  settled  law  of  that  State,  and  a  precedent  in  other  States, 
while  a  decision  favorable  to  the  statute  may  be  taken  to  Washington 
for  final  review. 


52        Majority  Rule  and  the  Judiciary 

be  "constitutional"  when  enacted  by  Oregon  or 
Kansas,  should  be  left  nugatory  in  New  York  on 
the  theory  that  it  violates  the  very  provision  of 
the  Federal  and  State  constitution  which  the  high- 
est court  of  the  land  has  specifically  held  it  not  to 
violate. 

The  circumstances  of  this  wide  divergence  in 
what  should  be  the  fundamental  law  of  the  land 
would  seem  to  be  these: 

The  Supreme  Court  of  the  United  States  has 
given  a  broad,  vital,  living  interpretation  to  the 
scope  of  the  "police  power"  as  affected  by  the 
"due  process"  clause. 

Many  of  the  courts  of  final  appeal  in  the  sev- 
eral States  have  found  themselves  unable,  or  un- 
willing, under  the  established  precedents  that  are 
behind  them  in  their  respective  jurisdictions,  to 
do  any  such  thing. 

How  this  has  come  aoout  may  be  briefly  traced. 
Without  attempting  any  precise  definition  of  the 
"due  process"  clause,  its  requirements  may,  in 
effect,  be  said  to  be  these: 

I.  That  a  man's  "life,  liberty,  or  property" 
shall  not  be  "taken"  except  by  procedure  in  ac- 
cordance with  the  fundamental  ideas  of  fairness 
and  regularity  which  obtain  in  Anglo-Saxon  juris- 


Majority  Rule  and  the  Judiciary        53 

dictions,  which,  of  course,  involves  due  notice, 
an  opportunity  to  be  heard,  and  some  regularity 
of  course  of  action.1  This  and  this  alone  was  the 
original  intent  and  meaning  of  the  clause  in  ques- 
tion— it  was  framed  to  prevent  the  executive  brandi 
of  government,  i.  e.,  the  King  or  his  representa- 
tives from  coming  around  and  arbitrarily  and  phys- 
ically seizing  and  carrying  off,  without  the  au- 
thority of  a  parliamentary  act  and  without  notice 
or  hearing  before  any  tribunal,  a  man's  physical 
property,  such  as  his  horse,  his  hoard  of  gold  or 
silver,  or  his  suit  of  mail.  The  suggestion  that 
this  clause  applies  to  anything  else,  and  espe- 
cially that  it  restricts  the  legislative  branch  of  gov- 
ernment, is  historically  much  more  recent,  as  is 
also  the  inclusion  of  the  further  requirement:2 

2.  That  "property"  shall  not  be  "taken"  by 
any  legislative  act  which  violates  fundamental  ideas 
of  morality  and  justice,  keeping  in  mind  the  para- 
mount public  interests  which  may  be  involved. 

1Farrar's  "Report  of  the  Argument  in  the  Dartmouth  College 
Case,"  page  267;  quoted  with  approval  in  Hurtado  v.  California, 
no  United  States  Reports,  page  516,  at  page  535. 

2 That  "due  process,"  historically  and  as  a  legal  concept,  relates 
only  to  procedure,  and  not  at  all  to  matters  of  the  substantial  justice 
of  the  result  reached  by  the  procedure,  is  interestingly  argued  by 
Jesse  F.  Orton  in  an  article  in  The  Independent  for  August,  1912, 
his  contention  being  that  the  "due  process"  requirement  of  the 
Fourteenth  Amendment  has  come  to  include  the  element  of  "just 
compensation"  only  by  a  process  of  "judicial  amendment  of  the  con- 
stitution." 


54        Majority  Rule  and  the  Judiciary 

Rightly  or  wrongly,  fortunately  or  foolishly,  the 
"due  process"  clause  has  been  made  to  involve, 
in  this  country,  substantially  the  two  requirements 
above  indicated.  From  the  latter  of  these  two 
propositions,  the  so-called  "police  powers"  inher- 
ent in  a  government  may  be  said  to  determine 
their  scope;  that  is  to  say,  if  a  given  legislative 
proposal,  not  in  conflict  with  any  "specific"  con- 
stitutional prohibition,  is  also  found,  upon  analy- 
sis, not  to  "deprive"  an  individual  of  his  "prop- 
erty "  in  a  way  contrary  to  common  standards  of 
justice  and  fairness,  both  as  to  the  method  of 
doing  it  and  the  purpose  for  which  it  is  done,  the 
legislation  is  deemed  to  come  within  the  "police 
power"  and  not  to  violate  the  "due  process" 
clause. 

In  the  closing  years  of  the  eighteenth  century 
and  the  earlier  years  of  the  nineteenth,  when  our 
Federal  and  State  constitutions  were  being  for- 
mulated and  given  their  almost  equally  formative 
construction  at  the  hands  of  the  courts,  it  was 
the  basic  social  conception,  first  of  the  political 
philosophers  and  later  of  the  leaders  in  the  law 
itself,  that  government  was  based  upon  a  shad- 
owy "social  compact,"  an  agreement  between 
those  to  be  governed  and  the  agency  of  govern- 
ment which  they  set  up,  and  that  under  this 
"compact"  there  is  an  elaborate  reservation  of 


Majority  Rule  and  the  Judiciary        55 

powers — to  the  individual,  the  code  of  "natural 
rights"  which  comprise  the  so-called  constitutional 
"guaranties",  and  in  favor  of  the  governmental 
units  combining  in  any  sort  of  a  federalism,  the 
so-called  "reserved  powers"  of  the  people  and 
those  units.  Under  a  system  whose  basic  prin- 
ciple was  the  theory  that  the  central  government 
had  only  such  powers  as  the  written  charter  had 
expressly  granted  to  it,  and  that  all  else  had  been 
reserved  to  the  States  or  to  the  people,  it  was 
but  natural  that  the  highest  court  of  the  new  fed- 
eralism— composed  as  that  court  was  of  men 
drawn  from  all  parts  of  the  land,  and  from  the 
ranks  of  those  who  were  thus  able  to  see  that 
new  conditions  brought  legislative  needs  which 
could  not  be  ministered  to  by  any  arbitrary  rule 
of  thumb,  uniform  for  all  localities  and  circum- 
stances— should  be  more  inclined  than  either  the 
State  courts  or  even  the  Federal  courts  of  limited 
territorial  jurisdiction,  to  a  broad  and  flexible  inter- 
pretation of  the  regulative  powers  of  government. 
Compelled  to  a  liberal  and  progressive  interpre- 
tation of  constitutional  provisions  as  the  neces- 
sary means  of  giving  vitality  and  efficacy  to  the 
national  government  itself,  the  nation's  court  be- 
came almost  irresistibly  the  exponent  of  princi- 
ples of  the  construction  of  written  constitutions 
which,  as  Mr.  Justice  Moody  said,  made  their 


5  6        Majority  Rule  and  the  Judiciary 

"unchanging  provisions  .  .  .  adaptable  to  the  in- 
finite variety  of  the  changing  conditions  of  our 
national  life."  * 

Likewise,  in  the  earliest  days  of  legislation  and 
government,  the  laissez  faire  economists  had  per- 
meated society  with  the  conception  that  govern- 
ment should  not  interfere  with  the  individual  ex- 
cept to  conserve  the  health,  physical  safety,  or 
morals  of  society  as  a  whole.  In  fact,  under  the 
simple  economic  conditions  and  the  limited  social 
conceptions  then  obtaining,  health,  safety,  and 
morals  were  about  all  "the  great  public  needs," 
the  known  ways  of  ministering  to  these  things 
were  simple  and  few,  and  there  was  little  disposi- 
tion to  think  that  government  had  any  very  great 
or  necessary  relation  even  to  these  three  things. 
Men  and  women  cared  very  little  whether  their 
government  did  much  of  anything  for  the  health 
or  welfare  of  their  neighbors,  and  the  judicial 
decisions  and  doctrines  of  the  time  reflected  the 
then  prevailing  morality  and  social  standards. 
But  from  this  it  followed  naturally,  in  the  devel- 
opment of  the  law,  that  some  of  the  State  courts 
considered  themselves  bound,  under  and  by  these 
precedents,  to  take  the  position  that  they  were 
unable  to  make  their  decisions  continue  to  reflect 

JThe   Employers'   Liability   Cases,  207  United  States  Reports, 
page  521. 


Majority  Rule  and  the  Judiciary        57 

the  prevailing  morality  and  changing  social  stand- 
ards of  the  subsequent  periods;  that  never  there- 
after could  they  sanction  or  uphold  any  regula- 
tory proposal  that  could  not  be  said  to  directly 
concern  and  conserve  the  health,  physical  safety, 
or  morals  of  the  people  as  first  conceived  and 
passed  upon;  and  that  any  regulatory  law  which 
unfavorably  affected  the  value  of  any  property 
or  the  earnings  of  any  business  of  any  citizen, 
except  a  business  "affected  with  a  public  interest"1 
or  a  business  actually  "outlawed"  by  statute, 
was  "in  violation  of  fundamental  ideas  of  moral- 
ity and  justice,"  unless  it  directly  and  equitably 
conserved  the  public  health,  physical  safety,  or 
morals  of  the  people  as  a  whole. 

Not  only  that  view,  but  the  original  narrow 
view — narrow  because  of  the  simplicity  of  the 
conditions  and  the  primitiveness  of  the  social 
standards  out  of  which  the  precedents  arose — of 
the  meaning  and  scope  of  the  terms  "health," 
"safety,"  and  "morals,"  became  fixed  in  unchal- 
lenged sway  in  many  of  the  State  courts.  For 
example,  in  the  so-called  Ives  case,2  the  New  York 
Court  of  Appeals  felt  required  to  take  the  posi- 
tion that  an  act  providing  for  the  compensation 
of  workingmen  injured  in  the  course  of  their  em- 

1Munn  v.  Illinois,  94  United  States  Reports,  page  113;   Budd  v. 
New  York,  143  United  States  Reports,  page  517. 
2  201  New  York  Reports,  page  271,  at  page  302. 


58        Majority  Rule  and  the  Judiciary 

ployment  in  any  of  eight  "inherently  dangerous " 
trades  did  not  "relate  to"  their  "health"  "morals," 
or  "physical  safety."  And  the  eminent  members 
of  the  New  York  bar  who  framed  the  constitu- 
tional amendment  designed  to  "correct"  and  "re- 
verse" the  decision  of  the  New  York  Court  of 
Appeals  in  the  Ives  case  felt  the  necessity  of  mak- 
ing a  specific  constitutional  provision  that  "noth- 
ing contained  in  this  constitution"  (i.  e.,  the  "due 
process"  clause)  shall  "limit  the  power  of  the 
legislature  to  enact  laws  for  the  protection  of  the 
lives,  health,  or  safety  of  employees" — as  though 
the  decisions  of  the  court  had  left  some  doubt 
about  this  and  as  though  this  was  the  desired 
"definition"  of  the  "police  power" — and  then, 
even  after  this  stipulation,  of  continuing  with  the 
provision  that  nothing  contained  in  the  consti- 
tution "shall  be  construed  to  limit  the  power  of 
the  legislature  to  enact  laws  .  .  .  for  the  payment 
of  compensation  for  injuries  to  employees,  or  for 
death  of  employees  resulting  from  such  injuries" — 
as  though  the  framers  of  the  amendment  could  not 
feel  sure  that  even  after  the  adoption  of  a  specific 
amendment,  the  requiring  of  "compensation  for  in- 
juries to  employees,  or  for  death  of  employees  re- 
sulting from  such  injuries"  would  be  held  to  come 
within  the  category  of  "laws  for  the  protection  of 
the  lives,  health  or  safety  of  employees"! 


Majority  Rule  and  the  Judiciary        59 

On  the  other  hand,  under  the  liberalizing  influ- 
ences operative  in  the  national  sphere,  the  United 
States  Supreme  Court,  from  the  first — and,  it  is 
fair  to  say,  no  inconsiderable  number  of  the  State 
courts — took  a  more  elastic  and  progressive  view 
of  the  scope  of  the  "police"  or  regulative  power. 
As  early  as  the  sixteenth  of  Wallace's  Reports 1 
(1872),  the  Supreme  Court,  in  the  so-called 
"Slaughter-House  Cases"  which  involved  the  reg- 
ulative powers  of  the  State  of  Louisiana  as  affected 
by  the  "due  process"  requirement  of  the  Four- 
teenth Amendment  to  the  Federal  Constitution, 
declared  that  the  "police  power"  of  a  State  was 
"the  general  and  rational  principle  that  every 
person  ought  to  so  use  his  property  as  not  to  in- 
jure his  neighbors,  and  that  private  interests  must 
be  made  subservient  to  the  general  interests  of  the 
community,"  and  continued  by  saying: 

It  is  much  easier  to  perceive  and  realize  the 
existence  and  sources  of  it  than  to  mark  its  boun- 
daries or  prescribe  limits  to  its  exercise.  The 
power  is,  and  must  be  from  its  very  nature,  in- 
capable of  any  very  exact  definition  or  limitation. 
Upon  it  depends  the  security  of  the  social  order, 
the  life  and  health  of  the  citizen,  the  comfort  of 
an  existence  in  a  thickly  populated  community, 
the  enjoyment  of  private  and  social  life,  and  the 
beneficial  use  of  property.  As  says  another  emi- 

1 16  Wallace's  (U.  S.)  Reports,  page  36. 


60        Majority  Rule  and  the  Judiciary 

nent  judge,  ' f  .  .  .  Persons  and  property  are 
subjected  to  all  kinds  of  restraints  and  burdens 
in  order  to  secure  the  general  comfort,  health, 
and  prosperity  of  the  State.  Of  the  perfect  right 
of  the  legislature  to  do  this,  no  question  ever  was, 
or,  upon  acknowledged  general  principles,  ever  can 
be  made,  so  far  as  natural  persons  are  concerned." 
(Thorpe  v.  Rutland  &  Burlington  R.  R.  Co.,  27 
Vt.  149.) 

In  Hurtado  v.  California,1  which  marked  a  mile- 
stone in  the  development  of  the  law,  Mr.  Justice 
Mathews  spoke  concerning  this  very  requirement 
of  "due  process"  as  follows: 

There  is  nothing  in  Magna  Charta,  rightly  con- 
strued as  a  broad  charter  of  public  right  and  law, 
which  ought  to  exclude  the  best  ideas  of  all  systems 
and  of  every  age;  and  as  it  was  the  characteristic 
principle  of  the  common  law  to  draw  its  inspira- 
tion from  every  fountain  of  justice,  we  are  not  to 
assume  that  the  sources  of  its  supply  have  been 
exhausted.  On  the  contrary,  we  should  expect 
that  the  new  and  various  experiences  of  our  own 
situations  and  system  will  mould  and  shape  it  into 
new  and  not  less  useful  forms. 

This  view  has  persisted  in  the  Supreme  Court 
of  the  United  States,  and  has,  in  general,  been 
effectually  and  fairly  applied.  There  have  been 
exceptions,  of  course,  even  in  that  court,  times 
when  the  numerical  ascendancy  in  the  personnel 
1  no  United  States  Reports,  page  516. 


Majority  Rule  and  the  Judiciary        6 1 

of  the  court,  of  men  under  the  influence  of  the 
narrower  State  view  and  the  laissez  faire  concep- 
tion of  the  proper  scope  of  governmental  activi- 
ties, seemed  to  incline  the  court  away  from  the 
full  and  logical  application  of  its  fundamental 
standards.  This  was  notably  the  result  in  the 
so-called  Bakeshop  Case 1  which  involved  the  con- 
stitutionality of  a  New  York  statute.  The  result 
reached  in  that  case  may,  perhaps,  be  explained 
and  justified  on  other  grounds,  but  in  its  under- 
lying philosophy  the  decision  therein  made  can- 
not be  said  to  represent  either  the  present  or  the 
prevailing  doctrine  of  the  highest  court  of  the  land. 
It  is  also  true  that  some  of  the  Federal  judges 
in  the  circuit  or  district  courts  have  shown  them- 
selves profoundly  influenced  or  completely  dom- 
inated by  the  narrower  views  of  the  State  tribu- 
nals of  their  respective  jurisdictions,  or  by  even 
more  restrictive  views,  and  have  been  persuaded 
by  these  local  influences  and  affiliations  to  ex- 
pound a  doctrine  of  circumscribed  governmental 
powers,  and  restrain  the  taking  effect  of  regulative 
measures  adopted  by  the  State  legislatures.  This 
has  caused  a  great  deal  of  resentment  against  the 
judges  of  the  Federal  circuit,  and  district  courts — 
in  some  parts  of  the  country  more  of  resentment 
than  against  the  State  courts,  which  the  people 

1  Lochner  v.  New  York,  198  United  States  Reports,  page  45. 


62        Majority  Rule  and  the  Judiciary 

had  found  ways  of  making  responsive  to  them. 
This  feeling  has  been  intensified  rather  than  less- 
ened by  the  fact  that  rarely  has  the  interference 
with  legislative  discretion  by  the  lower  Federal 
courts  found  approval  and  support  in  the  tri- 
bunal of  ultimate  appeal  at  Washington,  as  this 
has  meant  that  the  local  judges  have,  by  their 
interference,  been  able  to  accomplish  a  wholly  un- 
warranted suspension — for  one,  two,  or  three  years, 
pending  the  taking  of  testimony  and  the  prose- 
cuting of  the  appeal — of  the  taking  effect  of  an 
act  which  the  people  of  the  State  were  finally  held 
to  have  been  entitled  to  put  promptly  in  force. 

In  the  nation's  highest  court,  it  may  probably 
be  said,  the  question  whether  a  particular  legis- 
lative act  under  consideration  is  within  the  scope 
of  the  "police  power,"  has  generally  been  deemed 
to  be  a  matter  of  the  reasonableness  of  the  regu- 
lation as  a  matter  of  fact,  under  the  particular  con- 
ditions disclosed,  rather  than  the  application  of 
any  patent  rule  of  thumb.  As  Freund  says  in  his 
authoritative  work  on  "The  Police  Power,"  an 
examination  of  the  decided  cases  1 

will  reveal  the  police  power,  not  as  a  fixed  quan- 
tity, but  as  the  expression  of  social,  economic,  and 

1  "The  Police  Power,"  by  Ernst  Freund,  page  3  (1904);  Cf.  Ibid, 
pages  1 6  and  17, 


Majority  Rule  and  the  Judiciary        63 

political  conditions.  So  long  as  these  conditions 
vary,  the  police  power  must  continue  to  be  elas- 
tic, i.  e.,  capable  of  development. 

As  early  as  the  one  hundred  and  sixty-seventh  of 
the  United  States  reports  (1896),  the  "police 
power"  was  said1  "to  extend  to  all  the  great 
public  needs,"  and,  coming  down  to  the  still 
later  pronouncements  of  the  court,  we  find  the 
definition  of  the  "police  power"  which  is  the 
corner-stone  and  bulwark  of  all  or  most  of  the 
present  agitation.  Certainly  it  is  the  strongest 
of  judicial  endorsement  for  the  essential  position 
of  those  who  hold  that  in  the  ultimate  analysis, 
the  mature  and  deliberate  opinion  and  the  under- 
lying social  conscience  of  the  people,  as  manifest 
through  the  agencies  of  legislation,  must  be  the 
guide  in  determining  what  the  government  may 
do  for  the  relief  of  acute  and  pressing  social  needs. 
/In  the  decision  of  Noble  State  Bank  v.  Haskell* 
followed  in  a  number  of  similar  and  subsequent 
cases,  the  Supreme  Court  stated  its  conception 
of  how  far  the  "due  process"  and  "police  power" 
clauses  of  the  State  as  well  as  Federal  constitu- 
tions sanction  the  remedial  legislation  which  the 
people  themselves  deem  called  for  by  the  condi- 
tions of  the  times.  "We  must  be  cautious,"  said 

1Camfield  v.  Brown,   167  United   States  Reports,  page   518,  at 
page  524. 

8  219  United  States  Reports,  page  104. 


64        Majority  Rule  and  the  Judiciary 

the  court,  speaking  by  Mr.  Justice  Holmes, 
"about  pressing  the  broad  words  of  the  Four- 
teenth Amendment  to  a  drily  logical  extreme. 
.  .  .  The  police  power  extends  to  all  the  great 
public  needs.  It  may  be  put  forth  in  aid  of  what 
is  sanctioned  by  usage,  or  held  by  the  prevailing 
morality  or  the  strong  and  preponderant  opinion  to 
be  greatly  and  immediately  necessary  to  the  public 
welfare." 1 

Here,  then,  is  the  issue,  and  largely  also  the 
cause,  of  the  present  agitation  very  plainly  re- 
vealed. On  the  one  hand,  is  the  narrow  view 
of  some  State  courts  that  the  scope  of  the  "police 
power"  is  a  mere  question  of  law,  to  be  deter- 
mined by  purely  legal  precedents  that  antedate 
both  our  constitutions  and  our  courts.  Under 
this  view,  it  is  inevitable  that  present-day  efforts 
for  the  relief  of  present-day  needs  should  be  con- 
tinually harassed  and  held  back  by  the  curbing 
hands  of  eighteenth-century  standards  and  eigh- 
teenth-century political  and  social  philosophy. 
On  the  other  hand,  is  the  enlightened  view  of  the 
great  tribunal  at  Washington  that  when  no  ex- 
plicit constitutional  provision  is  contravened,  the 
ultimate  standard  of  what  a  State  may  do  is  its 
citizens'  mature  conclusion  as  to  what  they  ought 

1  219  United  States  Reports,  page  104,  at  page  119, 


Majority  Rule  and  the  Judiciary        65 

to  do,  and  that  the  question  of  the  scope  of  a 
State's  regulative  power,  so  far  as  any  but  the 
"specific"  constitutional  curbs  thereon,  is  a  broad 
question  of  policy  and  fact,  under  the  particular 
conditions  disclosed,  the  determining  factor  to  be 
the  "prevailing  morality"  and  the  "strong  and 
preponderant  opinion"  of  the  people  as  to  what 
should  be  done. 

A  concrete  and  typical  instance  of  just  the  way 
this  divergence  between  the  two  rules  of  judicial 
action  works  out  in  practice,  will  be  sufficient  at 
this  point.  In  the  now  celebrated  Ives  case,1  the 
New  York  Court  of  Appeals  unanimously  held 
"unconstitutional,"  as  not  within  the  "police 
power"  but  within  the  prohibition  of  the  "due" 
process"  clause,  a  workingmen's  compensation 
law  which  had  been  drawn  and  revised  by  sev- 
eral of  the  ablest  members  of  the  New  York  bar, 
with  advice  and  counsel  of  experts  in  other  States 
and  nations,  including  a  number  of  judges  of  Fed- 
eral and  State  courts.  It  may  be  remarked  that, 
a  few  months  later,  the  Supreme  Court  of  the 
United  States,  in  a  case  coming  up  through  the 
Connecticut  State  courts  and  involving  substan- 
tially the  same  questions  of  law,  unanimously  held 
"constitutional" 2  the  statute  there  in  question,  and 

1  Ives  v.  South  Buffalo  Ry.  Co.,  201  New  York  Reports,  page  271. 

2  Second  Employers'  Liability  Cases,  223  United  States  Reports, 
page  i. 


66        Majority  Rule  and  the  Judiciary 

in  terms  rejected  the  precise  grounds  upon  which 
the  New  York  court  reached  the  contrary  result. 
How  did  the  New  York  Court  of  Appeals  say  the 
scope  of  the  regulative  powers  of  the  State  govern- 
ment as  affected  by  the  "due  process"  clause 
should  be  determined?  The  able  and  argumen- 
tative opinion  of  the  court,  as  prepared  by  Judge 
Werner,  answers  the  question  succinctly:1 

Every  man's  right  to  life,  liberty,  and  prop- 
erty is  to  be  disposed  of  in  accordance  with  those 
ancient  and  fundamental  principles  which  were  in 
existence  when  our  constitutions  were  adopted. 

Learned  counsel  representing  the  Commission  ap- 
pointed by  Governor  Charles  Evans  Hughes,  now 
of  the  Supreme  Court  of  the  United  States,  who 
also  signed  and  strongly  approved  the  statute  re- 
jected in  the  Ives  case,  called  to  the  attention  of 
the  Court  of  Appeals  the  language  used  in  the 
Noble  State  Bank  case  and  other  recent  decisions 
of  the  highest  court  of  the  land,  and  argued,  with 
some  reason,  it  would  seem,  that  if,  as  the  Su- 
preme Court  had  therein  held,  the  "police  power" 
of  a  State  enabled  it  to  require  each  bank  to  set 
aside,  out  of  its  own  daily  deposits,  a  percentage 
thereof  to  constitute  a  fund  out  of  which  the 
depositors  of  any  other  bank  in  the  State  that 

1  201  New  York  Reports,  page  271,  at  page  293. 


Majority  Rule  and  the  Judiciary        67 

might  fail — through  no  fault  of  the  depositors  of 
other  banks,  of  course — should  be  reimbursed,  in 
whole  or  in  part,  as  need  be,  surely  that  same 
regulative  power  should  enable  the  State  to  re- 
quire an  employer  to  charge  against  the  expenses 
of  his  business  a  sum  for  the  compensation  or 
reimbursement  of  any  of  his  employees  who  might 
be  injured  while  manufacturing  the  product  or 
furnishing  the  service  for  which  the  employer 
charges  the  public.  Counsel  urged  that  the  stat- 
ute should  be  upheld  because  so  undeniably  de- 
manded by  the  "preponderant  opinion"  and  "pre- 
vailing morality"  of  the  American  people,  and 
the  "established  usage"  of  nearly  all  of  the  civ- 
ilized countries  of  the  world.  The  court  was 
urged  to  lay  no  forbidding  hand  upon  the  legis- 
lation which  by  the  experience  of  other  States  and 
other  countries  was  conceded  to  be  of  great  bene- 
fit to  the  community  and  strongly  called  for  by 
present-day  economic  conditions.  But  no,  the 
court  said: 1 


Every  man's  right  to  life,  liberty,  and  property 
is  to  be  disposed  of  in  accordance  with  those 
ancient  and  fundamental  principles  which  were 
in  existence  when  our  constitutions  were  adopted. 
.  .  .  No  word  of  praise  could  overstate  the  in- 
dustry and  intelligence  of  this  commission  in  deal- 

1  201  New  York  Reports,  page  271,  at  page  293. 


68        Majority  Rule  and  the  Judiciary 

ing  with  a  subject  of  such  manifold  ramifications 
and  of  such  far-reaching  importance  to  the  State, 
to  employers,  and  to  employees.  We  have  already 
admitted  the  strength  of  this  appeal  to  a  recog- 
nized and  prevalent  sentiment.  ...  As  to  the  cases 
of  Noble  State  Bank  v.  Haskell  (219  U.  S.  104), 
and  Ass  aria  State  Bank  v.  Dolley  (219  U.  S.  121), 
we  have  only  to  say  that  if  they  go  so  far  as 
to  hold  that  any  law,  whatever  its  effect,  may 
be  upheld  because  by  the  "prevailing  morality" 
or  the  "strong  and  preponderant  opinion "  it  is 
deemed  "to  be  greatly  and  immediately  neces- 
sary to  the  public  welfare,"  we  cannot  recognize 
them  as  controlling  of  our  own  construction  of 
our  own  constitution. 


Numbers  of  similar  decisions1  in  New  York  and 
other  States,  might  be  cited  as  disclosing  a  simi- 
lar position  taken  and  similar  language  used,  but 
it  is  not  the  purpose  here  to  narrate  or  magnify 
instances  of  a  condition  concededly  existent.  Con- 
structive discussion  and  not  mere  criticism  or  the 
marshalling  of  cases  which  have  aroused  popular 
resentment,  is  needed  at  this  juncture.  If  the 
chief  cause  of  complaint  against  courts  and  judges 
in  general  is  that  some  of  the  State  courts  find 
themselves  unable,  under  the  precedents  control- 
ling them,  or  unwilling,  to  permit  the  legislative 
and  executive  branches  of  government  to  carry 
out  the  popular  will  on  matters  of  regulative  policy 

1  See  introduction  by  Theodore  Roosevelt,  pages  16  to  20,  ante. 


Majority  Rule  and  the  Judiciary        69 

and  social  justice,  what  are  the  current  proposals 
for  the  relief  of  this  cause  of  criticism?  In  what 
manner  shall  the  fundamental  law  as  interpreted 
by  the  nation's  great  court  be  given  its  constitu- 
tional vigor  in  the  policies  of  laggard  States? 


IV 

THE  ULTIMATE  SUPREMACY  OF  A 

DECISIVE  POPULAR  MAJORITY 

UNDER  THE  CONSTITUTION 

The  seriously  considered  proposals  for  judici- 
ary reform  are  three: 

1.  That  if  a  judge  refuses  enforcement  to  the 
people's  deliberate  will  on  matters  of  regulative 
or  legislative  policy,  the  people  should  be  enabled 
to  reject  or  "recall"  the  judge. 

2.  That  if  judges  persist  in  holding  legislation 
"unconstitutional"  on  grounds  involving  no  "spe- 
cific" constitutional  provision,  but  amounting  to 
an  interference  with  legislative  discretion  and  a 
misconception  of  the  popular  will,  the  power  of 
the    courts    to    hold   legislation    "unconstitutional" 
should  be  taken  away. 

3.  That   if  a    State   court   finds   itself  unable, 
under  the  legal  precedents  controlling  it  or  its 
conception   as   to   the  permissible  scope  of  "re- 
straints and  burdens  to  secure  the  general  com- 
fort,  welfare,   and   prosperity  of  the   State,"   to 
sanction   "public  welfare"   legislation   called   for 
by  the  "prevailing  morality"  or  the  "strong  and 

preponderant  opinion,"  the,  people  should  be  per- 

70 


Majority  Rule  and  the  Judiciary        71 

mittedy  in  a  deliberate  manner,  to  determine  whether 
the  absence  of  favorable  precedents  should  be  disre- 
garded and  the  courts  misconception  of  the  "pre- 
vailing morality"  and  popular  will  corrected. 

Which  of  these  three  methods  is  to  be  preferred  ? 
If  a  judge  sets  himself  against  the  popular  will  on 
"welfare  legislation,"  shall  we  reject  or  "recall" 
the  judge,  honest  and  upright  though  he  may  be 
in  all  arbitraments  between  man  and  man;  or 
shall  we  take  away  the  power  of  all  courts  to  exer- 
cise any  check  or  curb,  even  in  the  first  instance, 
upon  the  legislative  branch  of  government,  or  shall 
we  simply  let  the  majority  of  the  people,  in  some 
deliberate  manner,  substitute  their  determination 
of  what  they  think  and  want,  for  the  judge's  mis- 
taken view  of  what  he  thought  the  people  thought 
and  wanted,  or  ought  to  think  and  want?  In  that 
connection  it  may  be  observed  that  there  are  two 
methods  which  may  be  followed  in  substituting 
the  majority's  view  for  the  court's  view  as  to  a 
particular  law — the  first,  that  of  direct  popular 
vote  upon  a  constitutional  amendment  to  render 
"constitutional"  all  that  class  or  category  of  legis- 
lation; the  second,  that  of  a  direct  popular  vote  as 
to  what  is,  in  fact,  the  "prevailing  morality"  and 
"preponderant  opinion"  as  to  the  particular  law. 

Before  taking  up  the  three  proposals  men- 
tioned, it  will  be  noted  that  there  is  not  included 


72        Majority  Rule  and  the  Judiciary 

explicitly  therein  the  view,  more  or  less  frankly 
expressed  by  many,  that  a  decision  of  a  court 
under  the  "due  process"  clause  should  be,  and 
that  it  in  effect  now  is,  final  and  beyond  the 
power  of  even  a  decisive  majority  to  change  in 
any  manner  whatsoever.  When  honest  and  well- 
intentioned,  this  "stand-pat"  doctrine  proceeds  on 
the  assumption  that  so-called  "property  rights" 
are  absolute  and  beyond  any  public  rights,  and 
that  the  so-called  guaranties  of  the  "due  process" 
clause  are,  or  should  be  made  and  kept,  some- 
thing absolute  and  unchangeable,  by  popular  ma- 
jorities or  anything  else.  This  surprising  view  is 
not  infrequently  heard  of  late,  more  or  less  openly 
expressed.  It  appears  to  be  the  fundamental 
misapprehension  so  rhetorically  indulged  in  by 
Dr.  Nicholas  Murray  Butler,  in  his  address 1  before 
the  Republican  State  Convention  in  New  York, 
in  April,  1912,  and  in  his  monograph2  on  "Why 
Should  We  Change  Our  Form  of  Government?" 
Before  the  Aldine  Club,  in  -New  York  City,  in 
March,  1912,  Mr.  Charles  F.  Mathewson,  attor- 
ney for  the  Consolidated  Gas  Company,  and  one 
of  the  leaders  of  the  metropolitan  bar,  made  it 
very  clear,  in  opposing  Colonel  Roosevelt's  pro- 
posal, that  he  did  not  believe  in  any  method 

1  New  York  Tribune,  April  10,  1912;    quoted  from  on  page  vii, 
ante. 
a  Charles  Scribner's  Sons  (1912). 


Majority  Rule  and  the  Judiciary        73 

which  would  enable  the  people  to  regulate  the 
hours  of  labor,  and  that  he  did  not  believe  in  cor- 
recting the  Ives  decision,  even  by  the  constitu- 
tional amendment  proposed  by  his  brethren  of 
the  bar,  and  passed  by  the  New  York  legislature 
at  its  session  of  1912.  In  the  New  York  Sun 
and  The  Times  for  March  23,  1912,  Mr.  Mathew- 
son  was  accurately  quoted  as  citing  "ten-hour" 
legislation  as  an  instance  of  the  attempted  "tyr- 
anny of  the  majority  over  the  minority,"  and  as 
inquiring  "what  right  has  anyone  to  say  that  a 
man  working  ten  hours  for  three  dollars  a  day 
may  not  work  twelve  hours  and  receive  four  dol- 
lars?" That  feeling,  of  course,  was  a  perfectly 
logical  reason  for  opposing  Mr.  Roosevelt's  pro- 
posal, and  for  wishing  constitutional  amendment 
to  be  so  difficult  as  to  be  virtually  impossible; 
but,  of  course,  such  a  view  contravenes  the  basic 
idea  of  constitutional  government,  and,  in  fact, 
of  government  in  any  form,  and  is  hardly  recon- 
cilable with  anything  except  the  "philosophic 
anarchism"  advocated  by  the  late  Benjamin 
Tucker! 

Needless  to  say,  no  such  view  of  the  para- 
mountcy  of  purely  private  interests  will  find  seri- 
ous support  in  a  republic.  It  is  elementary  law 
and  policy  that  even  "private  property"  is  sub- 
ject to  "police  power"  regulation,  and  that,  as 


74        Majority  Rule  and  the  Judiciary 

the  Supreme  Court  said  in  the  Slaughter-House 
Cases,  "private  interests  must  be  made  subser- 
vient to  the  general  interests  of  the  community." 
Neither  in  theory  nor  in  fact  is  there  foundation 
for  the  view  that  the  "due  process"  clause,  or 
any  other  part  of  any  constitution,  confers  rights 
which  a  decisive  majority  may  not  limit,  change, 
or  withhold,  in  general  or  particular  cases.  As 
has  well  been  said  by  the  Appellate  Division  of 
the  New  York  Supreme  Court  for  the  Third  Ju- 
dicial Department — a  court  of  intermediate  ap- 
pellate jurisdiction — in  the  case  of  Rathbone  v. 
Wirthy  decided  in  I896:1 

A  written  constitution  presupposes  the  existence 
of  sovereign  and  absolute  power.  ...  In  this 
country  that  sovereign  and  absolute  power  is  the 
people.  In  the  language  of  James  Wilson,  the 
most  profound  lawyer  and  student  of  government 
in  the  continental  Congress  and  in  the  convention 
which  framed  the  Federal  constitution,  "With  us 
no  prerogative  of  government  can  be  set  up  as 
coequal  with  the  authority  of  the  people.  The 
supreme  power  is  in  them;  and  in  them,  even 
when  a  constitution  is  formed  and  a  government 
is  in  operation,  the  supreme  power  still  remains. 
A  portion  of  their  authority  they,  indeed,  dele- 
gate, but  they  delegate  that  portion  in  whatever 
manner,  in  whatever  measure,  for  whatever  time, 
to  whatever  persons,  and  on  whatever  conditions, 
they  may  choose  to  fix.  The  supreme  power  of 

1 6  New  York  Appellate  Division  Reports,  page  277,  at  page  287. 


Majority  Rule  and  the  Judiciary        75 

the  people  does  not  arise  from  the  constitution  or 
exist  by  virtue  of  it;  it  existed  prior  to  it;  it  makes 
and  unmakes  constitutions,  but  is  not  made  by 
them.  .  .  .  Under  our  form  of  government,  that 
supreme  power  is  vested  in  and  exercised  by  the 
majority,  and  for  all  practical  purposes  the  ma- 
jority are  the  people.  The  principle  that  the 
majority  shall  govern  lies  at  the  very  basis  of 
our  government." 

The  fundamental  principle  of  popular  govern- 
ment is  stated  by  Mr.  Herbert  Croly  in  his  splen- 
did study  of  our  constitutional  system:1 

The  security  of  private  property  and  personal 
liberty,  and  a  proper  distribution  of  activity  be- 
tween the  local  and  central  government,  de- 
manded at  that  time  (when  the  constitution  was 
adopted),  and  within  limits  still  demand,  adequate 
legal  guaranties.  It  remains  none  the  less  true, 
however,  that  every  popular  government  should,  in 
the  end,  and  after  a  necessarily  prolonged  delibera- 
tion, possess  the  power  of  taking  any  action  which, 
in  the  opinion  of  a  decisive  majority  of  the  people, 
is  demanded  by  the  public  welfare. 

And,  as  we  have  seen,  the  highest  court  of  the 
land  has  held  and  declared  that  the  regulative 
power  of  "a  decisive  majority"  in  any  State  "ex- 
tends to  all  the  great  public  needs"  and  enables 
the  carrying  out  of  what  is  "held  by  the  prevail- 

1  "The  Promise  of  American  Life,"  by  Herbert  Croly,  at  page  35. 


76        Majority  Rule  and  the  Judiciary 

ing  morality  or  strong  and  preponderant  opinion, 
to  be  greatly  and  immediately  to  the  public  wel- 
fare."1 

If  the  foregoing2  states  and  sustains  the  true 
theory  of  popular  government,  it  states  also  the 
essential  fact.  No  matter  how  cumbersome,  awk- 
ward, dilatory,  and  unsuitable  the  processes  of 
constitutional  amendment  may  be  in  any  State, 
the  existence  of  a  mode  of  amendment  contem- 
plates it  to  be  within  the  power  of  the  people  to 
use  it  for  the  purpose  of  altering  or  repealing  any 
constitutional  provision  they  may  see  fit,  includ- 
ing the  creation  of  special  "exceptions"  to  or 
"constitutional  definitions"  of,  the  "due  process" 
clause,  by  way  of  correction  or  reversal  of  a  pre- 
vious judicial  decision  or  otherwise.  For  example, 
if  a  State  court  holds  a  workingmen's  compensa- 
tion or  employers'  liability  act  to  violate  the 
"due  process"  clause  and  the  Federal  court  has 
held  the  contrary,  it  is  within  the  power  of  the 
people  ultimately  to  adopt  and  enforce  a  consti- 
tutional amendment  which  will  remove  all  work- 
ingmen's compensation  and  employers'  liability 
legislation  from  the  prohibitions  of  the-  adverse 
decision,  and  from  the  future  scrutiny  of  the 
courts,  and  thus  carry  out  the  popular  will  as  to 

1  For  further  quotation  from  authority,  see  page  163,  et  seq.,  post. 
*  Noble  State  Bank  v.  Haskell,  219  United  States  Reports,  page  in. 


Majority  Rule  and  the  Judiciary        77 

the  act  previously  pronounced  upon  adversely. 
That  is  just  what  is  now  being  done  in  New  York 
State.1  It  is  also  what  has  often  been  done  in 
the  States,  and  even  in  the  nation  as  a  whole, 
as  to  decisions  determining  the  effect  of  "specific" 
constitutional  provisions.  When  the  Supreme 
Court  held,  early  in  the  history  of  the  republic, 
that  a  sovereign  State  might  be  sued  in  the  Fed- 
eral courts  by  a  citizen  of  another  State,  the 
Eleventh  Amendment  to  the  constitution  was 
forthwith  adopted,  concerning  which  the  Supreme 
Court  itself  said,  as  recently  as  1890: 2 

This  amendment,  expressing  the  will  of  the  ulti- 
mate sovereignty  of  the  whole  country,  superior 
to  all  legislatures  and  all  courts,  actually  reversed 
the  decision  of  the  Supreme  Court. 

Likewise  when  the  New  York  Court  of  Appeals 
rendered  a  series  of  often  conflicting,3  but  always 
"unpopular,"  decisions  against  the  constitution- 
ality of  laws  providing  that  employees  of  con- 
tractors on  State  or  municipal  work  should  be 
paid  not  less  than  the  prevailing  rate  of  wages, 

irThe  constitutional  amendment  in  course  of  adoption  in  New 
York  to  "  reverse  "  the  Ives  decision  is  quoted  on  pages  146  and  147, 
post. 

2  Hans  v.  Louisiana,  134  United  States  Reports,  page  i,  at  page  n; 
further  quoted  from  at  page  163  ft  seq.,  post. 

3  See  People  ex  rel.  Cossey  v.  Grout,  179  New  York  Reports,  at 
page  417,  at  page  420  et  seq. 


78        Majority  Rule  and  the  Judiciary 

nor  required  to  work  more  than  a  specified  num- 
ber of  hours  per  day,  an  exasperated  public  "re- 
versed" them  all  and  removed  all  constitutional 
barriers  by  a  constitutional  amendment1  adopted 
by  the  people  in  1905.  At  the  present  time  also, 
the  several  States  of  the  United  States,  some  years 
after  the  Supreme  Court  of  the  United  States 
made  an  unanticipated  reversal  of  its  own  previ- 
ous decision  as  to  the  effect  of  a  certain  constitu- 
tional provision  upon  the  power  of  the  central 
government  to  levy  an  income  tax,  are  engaged 
in  the  adoption  of  an  amendment,  ably  advocated 
by  Mr.  Root,  to  "reverse"  and  "nullify"  the  de- 
cision of  the  nation's  highest  court. 

In  the  light  of  this  analysis  of  the  American 
theory  and  practice,  the  question  becomes  not 
whether  the  popular  will  shall  be  expressed  and 
enforced  at  all,  following  the  State  court's  in- 
terpretation of  the  proviso  of  "due  process"  as 
applied  to  a  particular  act  and  situation,  but 
simply  by  what  method  shall  the  popular  will  be 
reinstated  and  the  court's  misapprehension  be  set 
aside.  This  must  necessarily  be  the  case  as  to 
matters  of  regulative  policy.  As  was  said  by  the 
late  Mr.  Justice  Harlan  in  one  of  the  most  impres- 
sive of  his  mighty  utterances: 

1  New  York  State  Constitution,  Article  XII,  Section  I. 


Majority  Rule  and  the  Judiciary        79 

When  the  American  people  come  to  the  con- 
clusion that  the  judiciary  of  this  land  is  usurping 
to  itself  the  functions  of  the  legislative  depart- 
ment of  the  government,  and  by  judicial  construc- 
tion only  is  declaring  what  should  be  the  public 
policy  of  the  United  States,  we  will  find  trouble. 
Ninety  millions  of  people — all  sorts  of  people  with 
all  sorts  of  opinions — are  not  going  to  submit  to 
the  usurpation  by  the  judiciary  of  the  functions 
of  other  departments  of  the  government,  and  the 
power  on  its  part  to  declare  what  is  the  public 
policy  of  the  United  States. 

So,  then,  looking  upon  the  matter  as  one  of 
method  rather  than  of  principle,  except,  perhaps, 
in  so  far  as  differences  of  method  may  be  said  to 
present  a  question  of  principle,  we  may  proceed 
to  discuss  the  relative  merits  of  the  three  pro- 
posals which  are  now  before  the  people. 


THE  RECALL  OF  JUDGES 

"The  recall  of  judges"  is  the  catch-word  of  the 
proposal  that  upon  the  petition  of  a  specified  per- 
centage of  the  electorate,  a  judge  whose  person- 
ality or  judicial  acts  are  unsatisfactory  to  at 
least  those  who  signed  the  petition,  shall  be  re- 
quired to  submit  his  further  tenure  in  office  to 
the  issue  of  a  direct  popular  vote,  prior  and  with- 
out regard  to  the  expiration  of  the  term  for  which 
he  was  elected  or  appointed.1  Some  State  consti- 
tutions contain  "recall"  provisions  not  applicable 
to  the  judiciary,  and  in  others  the  judiciary  is  not 
excepted.  Usually,  however,  the  "recall"  of  the 
judiciary  is  surrounded  with  especial  safeguards, 
to  ensure  deliberate  and  representative  action.  A 
large  percentage  of  the  electorate — in  some  in- 
stances as  high  as  thirty  or  even  fifty  per  cent — 
is  required  to  sign  the  petitions  before  a  "recall" 
election  can  be  initiated.  A  substantial  period 
for  "sober  second  thought"  is  required  to  elapse 

•  1  "Documents  on  the  State-wide  Initiative,  Referendum,  and 
Recall,"  by  Charles  A.  Beard  (1912);  "Government' By  All  the 
People,"  by  Delos  F.  Wilcox  (1912). 

80 


Majority  Rule  and  the  Judiciary        81 

before  the  vote  is  taken.  In  some  common- 
wealths the  issue  of  the  "recall"  election  is 
simply  whether  the  official  in  question  shall  be 
required  to  retire  to  private  life,  and  a  later 
election  held  to  choose  his  successor.  In  other 
commonwealths,  persons  offering  themselves  as 
candidates  may  contest  the  election  with  the  in- 
cumbent whose  tenure  is  attacked,  and  the  out- 
come of  the  election  is  the  continuance  in  office  of 
the  incumbent  or  the  choice  of  his  successor  by  the 
same  vote  which  terminates  his  term.  Sometimes 
it  is  provided  that  after  a  vote  has  once  been 
taken  as  to  the  "recall"  of  a  particular  official, 
another  election  as  to  his  continuance  in  office 
may  not  be  precipitated,  unless  the  persons  filing 
the  second  petition  pay  into  the  treasury  the  ex- 
penses incurred  in  the  holding  of  the  first  "re- 
call" election.  It  is  generally  considered  that  a 
"recall"  election  involving  a  judge  should  be 
made  more  difficult  and  more  fully  safeguarded, 
than  a  similar  contest  as  to  the  continuance  in 
office  of  an  administrative  official. 

If,  however,  judicial  misapprehension  and  ob- 
struction of  the  regulative  policy  and  needs  of 
the  State  is  the  condition  which  has  aroused  pres- 
ent criticism  of  the  court,  can  it  be  said  that  the 
adoption  of  the  "recall  of  judges"  is  the  necessary 


82        Majority  Rule  and  the  Judiciary 

or  proper  remedy?  Should  judges  who  incorrectly 
interpret  the  "police  power"  necessarily  be  sub- 
jected to  "recall"  from  office? 

It  is  not  difficult  to  understand  why  California 
— the  State  of  Patrick  Calhoun  and  Reuf  and 
Schmitz  and  the  Southern  Pacific  Railroad — 
adopted  the  "recall,"  even  as  to  judges.  It  is 
not  difficult  to  understand  why  Arizona — the 
State  of  Sloan  and  Andrews  and  railroad  and 
mining  corporations — is  restoring  the  "recall"  to 
the  State  constitution,  from  which  it  was  removed 
at  the  behest  of  a  presidential  veto.  No  extraor- 
dinary powers  of  divination  are  required  to  un- 
derstand the  growth  of  sentiment  for  the  "recall" 
in  Pennsylvania — the  State  of  Archbald  and  Elkin 
and  Standard  Oil.  Yet,  looking  at  the  matter 
from  the  point  of  view  of  the  problem  analyzed 
in  the  preceding  pages,  does  it  not  seem  clear 
that  the  "recall"  of  judges  is  neither  a  wise  nor 
a  necessary  means  of  securing  a  State  interpre- 
tation of  the  regulative  power  in  consonance  with 
the  Federal  interpretation  and  with  the  progres- 
sive sentiment  of  the  country?  If  a  judge  in- 
correctly gauges  the  "preponderant  opinion"  as 
to  the  social  necessity  for  a  particular  law,  why 
remove  HIM?  Why  not  let  the  people  vote  di- 
rectly to  decide  what  the  majority  opinion  is? 
If  a  judge  is  dishonest,  impeach  him;  if  he  is 


Majority  Rule  and  the  Judiciary        83 

incompetent,  remove  him  by  complaint  before 
the  legislature  or  refuse  him  re-election,  but  it 
does  not  seem  quite  fair  to  require  him  to  take 
the  final  "guess"  as  to  what  the  "prevailing  mo- 
rality" and  the  "preponderant  opinion"  of  a  State 
really  is,  and  then  chop  off  his  judicial  head  if 
he  "guesses"  or  "calculates"  wrong. 

Therefore,  in  so  far  as  the  demand  for  the 
"recall"  of  judges  is  based  upon  the  relation  of 
the  courts  to  the  legislative  functions  of  govern- 
ment, the  "recall"  of  judges  is  neither  wise  nor 
necessary,  and  should  not  be  adopted  unless,  in 
particular  States,  it  may  be  found  justifiable  on 
other  grounds,  or  called  for  by  local  conditions. 
Is  it  not  preferable  that  the  judge,  in  his  office, 
should  be  given  a  tenure  independent  of  all  polit- 
ical or  personal  or  temporary  considerations,  to 
the  end  that  he  may  administer  justice  between 
man  and  man  "without  fear  or  favor."  Only  his 
conclusions  on  matters  of  paramount  public  policy 
— not  he  himself  or  his  tenure — need  be  subjected 
to  a  direct  popular  accountability,  previous  to 
orderly  expiration  of  his  term  of  office.  Through 
proper  adjustment  of  the  appointive  and  elective 
terms  of  judges,  through  making  their  nomina- 
tion and  election  wholly  apart  from  party  poli- 
tics and  party  columns  on  the  ballot,  and  through 
orderly  and  effectual  processes  of  impeachment  or 


84        Majority  Rule  and  the  Judiciary 

removal,  other  conditions  which  rrjight  lead  to 
the  adoption  of  the  "recall"  of  judges  would 
seem  likely  to  be  obviated.  But  not  so  as  to 
judicial  obstruction  to  "welfare"  legislation;  and 
current  political  events  furnish  a  great  deal  of 
reason  for  believing  that  unless  there  is  soon 
adopted  a  conservative  and  constructive  remedy, 
the  rising  tide  of  insistent  public  opinion  may 
adopt  the  radical  remedy. 

It  is  doubtless  true,  however,  that  well-inten- 
tioned persons  of  conservative  bent  of  mind  eas- 
ily get  very  unnecessarily  alarmed  about  the  "re- 
call," even  of  the  judiciary.  It  is  easy  to  think 
a  lot  of  things  might  happen  which  would  not. 
The  cherished  independence  of  the  judiciary  has 
not  very  much  foundation  or  support  except  in 
the  confidence  and  respect  of  the  people.  As  Mr. 
Wendell  Phillips  said  to  the  Massachusetts  legis- 
lature in  Lorings  Case  (1855),  "you  cannot  legis- 
late judges  into  the  confidence  of  the  people. 
You  cannot  preach  them  into  it.  Confidence 
must  be  earned."  The  adoption  of  the  "recall" 
of  judges  would  not  make  a  politician  out  of 
many  judges  who  were  not  politicians  already. 
It  is  not  possible  to  believe  that  fear  of  his  re- 
moval from  office  would  make  any  member  of 
the  New  York  Court  of  Appeals  change,  by  one 


Majority  Rule  and  the  Judiciary        85 

jot  or  tittle,  his  conscientious  attitude  and  course 
toward  the  legislation  condemned  by  him  in  the 
Ives  case,  or  toward  other  "welfare"  legislation 
at  variance  with  the  method  approved  by  the  na- 
tion's highest  court  though  that  attitude  and 
course  may  be.  As  Mr.  William  A.  Prendergast 
recently  declared,  "to  say  that  direct  popular 
accountability  would  make  a  coward  out  of  a 
public  officer  is  like  saying  that  it  makes  cow- 
ards out  of  soldiers  to  order  them  to  the  front 
upon  the  field  of  battle."  Members  of  the  bar 
have  ever  been  prone  to  think  that  anything 
which  would  alter  in  any  respect  the  technical 
independence  of  the  judiciary,  would  thereby  de- 
stroy its  actual  and  real  independence.  That  sort 
of  fear  has  almost  always  proved  unfounded. 

Much  that  is  reassuring  may  be  found  in  the 
meditations  based  upon  a  reading  of  the  minutes 
of  the  Massachusetts  Constitutional  Convention 
of  1820.  They  are  referred  to  here  because  of 
their  bearing  also  upon  the  whole  present  discus- 
sion of  the  relation  of  the  courts  to  the  people. 
The  Massachusetts  constitution,  as  first  adopted, 
provided,  as  it  does  still,  that  "all  judicial  offi- 
cers .  .  .  shall  hold  their  offices  during  good  be- 
havior," unless  impeached  for  cause,  or  unless 
removed  by  the  governor  and  council  upon  the 
address  of  a  bare  majority  of  the  members  of 


86        Majority  Rule  and  the  Judiciary 

both  houses  of  the  State  legislature.1  A  similar 
provision  for  removal  of  judicial  officers  by  a 
majority  or  two-thirds  vote  of  both  houses  of 
the  State  legislatures,  without  the  proving  of 
legal  grounds  for  impeachment  "for  cause,"  is  to 
be  found  in  several  other  State  constitutions. 
In  the  Massachusetts  convention  of  1820,  a  dis- 
tinguished committee  was  appointed  to  take  into 
consideration  the  judiciary  clause  as  above  quoted. 
Its  chairman  was  Mr.  Justice  Story,  of  the  Su- 
preme Court  of  the  United  States,  and  its  mem- 
bership included  Chief  Justice  Shaw,  Mr.  Levi 
Lincoln,  Mr.  John  Phillips,  and  others  whose 
names  are  familiar  for  their  ability  at  the  bar 
and  on  the  bench.  This  committee  was  sorely 
afraid  that  this  liberal  power  of  removal,  for  any 
reason  or  no  reason,  by  a  meagre  legislative  ma- 
jority, without  even  requiring  the  legislature  to 
state  its  grounds  for  such  action,  or  give  the  judges 
in  question  an  opportunity  to  be  heard,  was  danger- 
ous and  should  be  changed. 

"The  committee  is  of  the  opinion,"  said  this 
report2  in  1820,  concerning  a  constitutional  provi- 
sion that  has  ever  since  been  in  existence  in  Mas- 
sachusetts and  other  States,  "that  this  provision 

1  Massachusetts  State  Constitution,  Chapter  III,  Articles  I  and  II. 

2  "Minutes  of  Massachusetts  Constitutional  Convention  of  1820" 
(prepared  by  Benjamin  Pickering  and  the  editor  of  The  Boston  Ad- 
vertiser), page  136  (Reprint  Ed.  of  1853). 


Majority  Rule  and  the  Judiciary        87 

has  a  tendency  materially  to  impair  the  inde- 
pendence of  the  judges,  and  to  destroy  the  effi- 
cacy of  the  clause  which  declares  that  they  shall 
hold  their  offices  during  good  behavior." 

In  the  debate  upon  this  committee  report,  grave 
were  the  fears  that  the  Massachusetts  constitu- 
tion would  destroy  the  independence  and  integrity 
of  the  courts.  Mr.  Samuel  Hubbard,  of  the  Suf- 
folk bar,  thought  that  "the  constitution  was  de- 
fective in  not  sufficiently  securing  the  indepen- 
dence of  judges."  1  Mr.  William  Prescott  thought 
there  was  "now  no  security."  Mr.  Prince,  of 
Boston,  thought  that  "the  single  admission  (that 
judges  have  power  to  hold  acts  of  the  legislature 
unconstitutional)  furnished  a  sufficient  argument 
against  leaving  it  to  the  legislature  to  remove  them, 
for  the  exercise  of  this  power  in  relation  to  a  favor- 
ite law  would  be  sure  to  lead  to  a  resolve  for 
their  removal." 3  Mr.  Daniel  Webster,  then  lately 
come  to  Massachusetts,  said  that  he  looked  upon 
the  constitutional  provision  "as  against  common 
right,  as  well  as  repugnant  to  the  general  prin- 
ciples of  the  government.  .  .  .  The  general  theory 
and  principle  of  the  government  is  broken  in  upon 
by  giving  the  legislature  this  power.  If  the  legis- 
lature may  remove  judges  at  pleasure,  assigning 
no  cause  for  such  removal,  of  course  it  is  not  to 

1  Ibid.,  page  474.  2  Ibid.,  page  477.  3  Ibid.,  page  523. 


88        Majority  Rule  and  the  Judiciary 

be  expected  that  they  would  often  find  decisions 
against  the  constitutionality  of  their  own  acts."1 
One  who  reads  the  debates  in  this  convention 
cannot  fail  to  be  impressed  how  thoroughly  and 
ably  all  the  present  arguments  against  giving  the 
power  of  removal  to  the  people  were  then  urged, 
with  equally  dire  predictions  of  public  disaster, 
against  leaving  a  power  of  removal  in  the  hands 
of  the  legislature,  and  how  much  more  impres- 
sive and  applicable  these  contentions  read  when 
urged  against  leaving  an  arbitrary  power  to  "re- 
call" a  judge  at  pleasure  in  the  hands  of  the 
legislature,  upon  whose  enactments  he  might  have 
often  to  pronounce  adversely! 

Mr.  Levi  Lincoln,  later  the  sturdy  governor  of 
the  State  and  an  honored  justice  of  its  Supreme 
Court,  spoke  in  reply  to  Mr.  Webster  and  the 
committee  report.  He  said  "he  was  not  afraid 
of  being  called  a  demagogue"  for  stating  the  only 
foundation  for  a  truly  "independent"  judiciary. 
His  words — they  are  quoted  from  the  minutes  of 
the  debates 2  as  prepared  in  the  third  person,  and 
published  by  Mr.  Pickering  and  the  editor  of 
The  Boston  Advertiser,  both  members  of  the  con- 
vention— have  a  peculiar  applicability  to-day: 

It  was  said  that  judges  have  estates  in  their 
offices — he  did  not  agree  with  this  doctrine.  The 

1  Ibid.,  pages  482  and  483.  2  Page  480. 


Majority  Rule  and  the  Judiciary        89 

office  was  not  made  for  the  judges,  nor  the  judge 
for  the  office,  but  both  for  the  people.  There 
was  another  tenure — the  confidence  of  the  people. 

And  Mr.  Henry  Childs,  of  the  Pittsfield  bar, 
declared  that  the  founders  of  the  State  constitu- 
tion had  "intended  to  put  the  judiciary  on  the 
footing  of  the  fullest  independence  consistent  with 
their  responsibility."  *  In  proof  of  this  he  referred 
to  Sections  5  and  8  of  the  Massachusetts  Decla- 
ration of  Rights,  which  will  hardly  be  challenged 
as  radical  or  novel  doctrine.  Section  5,  as  con- 
tained in  the  Massachusetts  constitution,  then  and 
now,  reads: 

All  power  residing  originally  in  the  people,  and 
being  derived  from  them,  the  several  magistrates 
and  officers  of  government,  vested  with  author- 
ity, whether  legislative,  executive,  or  judicial,  are 
their  substitutes  and  agents,  and  are  at  all  times 
accountable  to  them. 

Section  8  of  the  Declaration  of  Rights,  which 
was  also  referred  to,  was  the  first  American  state- 
ment of  the  "recall"  doctrine.  Even  though  it 
emanates  from  the  greatest  of  the  State  consti- 
tutions among  the  original  thirteen  States,  it 
would  have  little  chance  of  being  reaffirmed  to-day 
by  any  gathering  of  members  of  the  bar: 

1  Ibid.,  page  479. 


90        Majority  Rule  and  the  Judiciary 

In  order  to  prevent  those  who  are  vested  with 
authority  from  becoming  oppressors,  the  people 
have  a  right,  at  such  periods  and  in  such  manner 
as  they  shall  establish  by  their  frame  of  govern- 
ment, to  cause  their  public  officers  to  return  to  pri- 
vate life,  and  to  fill  up  vacant  places  by  certain  and 
regular  elections  and  appointments. 

Then  came  Mr.  Justice  Story,  than  whom,  in 
the  traditions  of  the  American  bar,  the  indepen- 
dence of  the  judiciary  never  had  a  stancher 
champion.  As  Mr.  Wendell  Phillips  said  *  in  1855, 
"If  anybody  was,  I  may  say,  a  little  crazy  on 
the  subject  of  the  independence  of  the  judges,  it 
was  the  late  able  and  learned  Judge  Story — at  least 
during  the  last  half  of  his  life."  The  closing  of 
the  debate  in  behalf  of  the  committee  report  had 
been  reserved  until  he  could  be  present.  He  re- 
plied to  Mr.  Levi  Lincoln  and  Mr.  Childs  by  as- 
serting that  it  was  removal  by  the  legislature,  not 
the  people,  of  which  he  was  afraid.  Removal  by 
the  majority  of  the  legislature,  he  said  (Mr.  Pick- 
ering's notes2  are  again  quoted),  without  neces- 
sarily the  assignment  of  a  reason  therefor: 

...  is  the  provision  of  the  constitution,  and  it  is 

only  guarded  by  the  good  sense  of  the  people.     He 
had  no  fear  of  the  voice  of  the  people,  when  he 

1  Address  to  the  Massachusetts  Legislature  upon  the  petition  for 
the  removal  of  Judge  Loring. 

2  Page  524. 


Majority  Rule  and  the  Judiciary        91 

could  get  their  deliberate  voice,  but  he  did  fear 
from  the  legislature,  if  the  judge  has  no  right  to 
be  heard.  .  .  .  The  object  of  the  amendment 
(reported  from  the  committee)  was  not  to  protect 
the  judges  against  the  people,  but  against  the  rep- 
resentatives of  the  people. 

However,  in  spite  of  the  fears  of  the  great 
leaders  of  the  bench  and  bar,  and  in  spite  of  the 
evident  view  of  Mr.  Justice  Story  that  he  would 
have  no  fear  from  popular  removal  but  much 
fear  of  legislative  removal,  Massachusetts  retained, 
by  vote  of  her  people,  and  still  retains,  the  orig- 
inal constitutional  provision  for  a  "recall  of 
judges"  absolutely  "at  the  whim  of  the  legislat- 
ure." What  has  been  the  result?  Has  the  "in- 
dependence" of  the  Massachusetts  judiciary  been 
"destroyed"  or  "substantially  impaired"?  Have 
Massachusetts  judges  ever  felt  that  there  was 
"now  no  security"?  Have  Massachusetts  courts 
ever  lacked  in  lustre  or  renown?  Did  its  courts 
cease  to  hold  acts  of  the  legislature  "unconstitu- 
tional," as  Mr.  Webster  feared?  Was  the  first 
decision  adverse  to  the  constitutionality  of  a  fa- 
vorite law  the  signal  for  "a  resolve  for  the  re- 
moval" of  the  judge  or  judges  thus  offending,  as 
Mr.  Prince  was  so  certain  it  would  be?  On  the 
contrary,  the  State  whose  constitution  contains 
the  "recall"  doctrine  in  phraseology  which  could 


92        Majority  Rule  and  the  Judiciary 

hardly  be  improved  upon,  and  the  most  drastic 
"judicial  recall"  provision  that  has  existed  in  any 
State  constitution  until  recently,  has,  in  spite  of 
the  early  fears  of  its  jurists,  led,  perhaps,  all  of  the 
States  in  the  ability,  character,  and  fundamental 
soundness  of  its  courts. 

Now  that  the  same  issues  are  again  under 
discussion  which  were  so  brilliantly  discussed  in 
the  Massachusetts  Convention  of  1820,  it  is  but 
natural  that  leaders  of  the  bar  and  bench  to-day, 
like  the  leaders  in  the  Massachusetts  gathering 
of  nearly  a  century  ago,  should  become  much  ex- 
ercised lest  the  Massachusetts  doctrine,  if  applied 
and  extended  in  State  constitutions,  might  do 
great  violence  to  essential  elements  in  our  judi- 
cial system.  Even  though  the  "judicial  recall" 
is  unnecessary,  and  may  be  unwise,  it  is  difficult 
to  read  American  constitutional  history  and  still 
believe  it  would  prove  in  fact  as  dangerous  and 
destructive  as  many  persons  are  now  contending. 


VI 

THE  POWER  TO  HOLD  LEGISLATION 
UNCONSTITUTIONAL 

That  judicial  misconception  of  "the  great  pub- 
lic needs"  should  be  made  the  occasion  for  tak- 
ing away  the  power  of  the  courts  to  declare  legis- 
lation "unconstitutional,"  is  not  a  proposal  now 
before  the  people  as  a  political  issue.  Until  the 
recent  proposal  of  Mr.  Roosevelt,  however,  there 
was  a  growing  belief  on  the  part  of  students  of 
jurisprudence  that  the  State  courts  would  cease 
to  be  a  barrier  to  social  progress  only  if,  and  when, 
their  power  to  nullify  legislation  was  taken  away. 
There  are  few  students  of  comparative  jurispru- 
dence who  have  not  believed  this  to  be  the  ulti- 
mate course.  Men  of  the  type  of  Dean  William 
Tricklett,  of  the  Dickinson  Law  School;  Chief 
Justice  Walter  Clark,  of  North  Carolina;  Pro- 
fessor Alfred  Hayes,  Jr.,  of  the  Chair  of  Compara- 
tive Jurisprudence  at  Cornell  University;  Pro- 
fessor Roscoe  Pound,  of  the  Harvard  Law  School; 
and  many  others  of  a  scholarly  familiarity  with 
our  constitutional  system  and  its  antecedents, 

93 


94        Majority  Rule  and  the  Judiciary 

apparently  have  seen  no  solution  short  of  some 
drastic  step.  They  point  out  that  the  principle 
of  judicial  supervision  of  the  legislature  came  to 
America  from  England,  where  it  existed  under  a 
government  of  "fused"  rather  than  "divided" 
and  co-ordinate  powers;  that  even  in  England,  it 
never  meant  any  such  judicial  powers  or  related 
to  any  such  matters  as  in  the  United  States 
to-day;  and  that  even  in  England  it  was  soon 
abandoned  and  the  present  rule  of  popular  and  par- 
liamentary omnipotence  substituted,  under  which 
no  one  would  suggest  that  the  cherished  consti- 
tutional guaranties  of  Magna  Charta  have  been 
broken  down  in  the  land  which  gave  them  birth, 
or  that  property  or  private  enterprise  have  been 
rendered  unsafe. 

The  matter,  from  an  historical  point  of  view,  has 
never  been  better  summarized  than  by  Professor 
Charles  Howard  Mcllwain,  Thomas  Brackett 
Reed  Professor  of  History  and  Political  Science  at 
Bowdoin  College,  in  his  monumental  work  on 
"The  High  Court  of  Parliament  and  its  Suprem- 
acy: An  Inquiry  into  the  Boundaries  between 
Legislation  and  Adjudication  in  England,"  in 
which  he  says,1  as  to  the  American  judicial  system: 

The  "legislative"  activity  of  our  courts  to-day 
is  a  fact  that  is  rightly  attracting  great  attention 

1  Pages  viii,  xi,  x». 


Majority  Rule  and  the  Judiciary        95 

at  the  present  time.  ...  It  is  a  subject  of  the 
utmost  consequence.  .  .  .  The  great  powers  now 
exercised  by  our  courts  (are)  greater  here  than  in 
England,  because  the  like  tendency  was  there 
checked  by  the  growth  in  the  seventeenth  cen- 
tury of  a  new  doctrine  of  parliamentary  omnipo- 
tence. ...  If  my  study  has  shown  that  the  pres- 
ent-day extension  of  judicial  action  in  America 
has  grown  out  of  conditions  in  the  England  of 
an  earlier  day,  it  has  shown  another  thing  no 
less  clearly — namely,  that  the  government  of 
Tudor  England  was  a  government  of  fused  powers 
(while  that  of  the  United  States  to-day  is  a  sys- 
tem of  separated  powers),  and,  therefore,  that  the 
former  activity  of  the  judges  in  England  was  due 
to  a  fusion  of  govermental  powers,  not  to  a 
division  of  those  powers.  The  extent  of  "judi- 
cial" activity  under  such  conditions  is  a  very 
dangerous  precedent,  if  it  is  to  be  followed  slav- 
ishly and  applied  without  discrimination  to  a  sys- 
tem in  which  there  is  a  balance  between  divided 
powers,  where  an  encroachment  of  one  depart- 
ment upon  another  may  endanger  the  balance  and 
threaten  the  whole.  It  is  not  fitting  that  the 
legal  historian  should  follow  precedent  to  such  an 
extent  as  in  all  cases  to  justify  the  legal  rules, 
merely  because  he  finds  for  them  an  unbroken 
history  or  even  a  former  usefulness. 

In  the  American  Law  Review,  in  1906,  Dean 
William  Tricklett  of  the  Dickinson  Law  School,1 
brilliantly  stated :  the  view  of  those  who  hold  with 

1  "Judicial  Dispensation  from  Congressional  Statutes,"  American 
Law  Review,  vol.  XLI,  page  65. 


96        Majority  Rule  and  the  Judiciary 

him  that  the  courts   must  be  stripped  of  their 
power  to  hold  legislation  "unconstitutional": 

It  is  necessary  to  complete  the  work  of  due  co- 
ordination of  the  various  arms  of  the  government, 
by  the  abandonment  by  the  judges  of  their  usurped 
power  of  paralyzing  the  legislative  organ  by  refus- 
ing to  carry  out  its  legislation,  and  by  enjoining 
officers  and  others  from  carrying  out  that  legisla- 
tion. The  legislators  are  elected  to  speak,  and 
usually  speak  the  people's  will.  The  people  will 
never  be  masters  in  their  own  house  so  long  as  a 
majority  of  nine  gentlemen,  pretending  to  have 
Marconigrams  from  the  defunct  men  of  1787  and 
1788  concerning  their  meaning  when  they  adopted 
this  or  that  phrase  of  the  constitution,  arrogate 
to  themselves  the  power  of  veto,  and  not  merely 
refuse  to  aid  in  the  enforcement  of  statutes,  but 
even  launch  prohibitions  against  the  carrying  out 
of  these  statutes  by  those  who,  unhindered  by 
them,  would  legally  execute  them. 

Until  the  legislative  organ  regains  its  lost  legis- 
tive  supremacy,  the  intentions  of  the  enacters  of 
the  constitution  are  defeated,  and  the  living  peo- 
ple's will  is  thwarted  by  what  five  men  out  of 
100,000,000  choose  to  declare  the  will  of  those 
who  have  been  dead  for  one  hundred  and  twenty- 
five  years. 

This  striking  excerpt  from  the  writings  of  Dean 
Tricklett  by  no  means  establishes,  however,  the 
taking  away  of  the  power  of  the  courts  to  hold 
legislation  "unconstitutional"  as  the  wise  or  nec- 
essary means  for  preventing  the  judicial  obstruc- 


Majority  Rule  and  the  Judiciary        97 

tion  of  the  popular  will  which  he  has  depicted. 
On  the  contrary,  it  would  be  a  misfortune  in  the 
minds  of  the  most  sagacious  of  American  states- 
men, if  the  problem  that  has  been  pointed  out 
should  lead  to  so  radical  and  dangerous  a  step 
as  the  taking  away  from  our  courts  of  all  power 
to  enforce  compliance  with  the  written  constitu- 
tions. In  the  interpretation  and  application  of 
specific  provisions,  the  compelling  of  a  careful 
legislative  and  popular  consideration  of  innova- 
tions in  legislation,  and  the  enforcement  of  a 
reasonable  conformance  to  fundamental  standards, 
the  courts  have  an  honorable  and  useful  function 
under  our  federal  system.  //  it  were  necessary 
to  take  away  this  power  of  the  courts  over  legis- 
lation as  the  only  practicable  means  of  removing 
existing  barriers  to  social  progress,  nothing  else 
could  be  expected  than  that  this  nation  would 
ultimately  follow  in  England's  footsteps  in  this 
respect,  and  curb  here  the  authority  of  the  courts 
just  as  was  long  ago  done  in  England.  Fortu- 
nately it  does  not  seem  necessary  to  go  so  far;  but 
the  serious  question  still  remains  whether,  in  the 
event  there  is  not  now  adopted  an  effectual  meas- 
ure of  conservative  and  constructive  implications, 
to-morrow's  action  may  not  be  more  drastic  and 
sweeping  than  the  situation  really  requires. 


VII 

DIRECT  POPULAR  RE-DEFINITION  VS. 

GENERAL  CONSTITUTIONAL 

AMENDMENT 

If  our  inquirys  has  led  to  the  conclusion  that, 
rather  than  remove  the  judge  from  office  or  strip 
the  courts  of  their  constitutional  functions,  we 
should  simply  give  to  the  people  the  ultimate  de- 
termination whether  a  particular  act  comes  within 
the  scope  of  the  "police  powers"  of  the  State,  and 
accordingly,  whether  the  "due  process"  clause  as 
interpreted  by  the  court  shall,  or  shall  not,  stand 
permanently  in  the  way  of  desirable  "welfare 
legislation,"  there  remains  to  be  considered  the 
question  of  method.  In  what  manner  shall  the 
popular  will  be  made  the  ultimate  arbiter  of  the 
regulative  powers  of  the  State?  Important  as  is, 
at  present,  the  decisive  re-establishment  of  the 
principle  of  ultimate  popular  control,  now  as- 
sailed and  rejected  in  some  quarters,  as  we  have 
seen,  it  is  no  less  important  that  out  of  the  dis- 
cussions of  the  bar  and  the  deliberations  of  the 
people  there  should  be  evolved  the  adoption  of 

the  most  suitable  method.     Believing  firmly  in  the 

98 


Majority  Rule  and  the  Judiciary        99 

principle,  the  writer  is  glad  to  join  in  discussing 
the  method. 

As  we  have  seen,  there  are  two  suggestions  in 
this  respect: 

(1)  The  method  of  constitutional  amendment, 
i.  <?.,  the  adoption,  by  a  direct  vote  of  the  people, 
of  an  addition,  in  necessarily  general  terms,  to  the 
"due  process"  clause  in  the  State  constitutions, 
to  the  effect  that  the  enforcement  of  this  or  that 
class  and  category  of  legislation  shall  not  be  pre- 
vented, in  spite  of  the  "due  process"  clause  and 
the  court's  decision  that  such  legislation  does  vio- 
late that  clause. 

(2)  The    method    of  referring   directly    to    the 
people  the  determination  whether  the  particular 
act  is,  in  fact,  within  "the  great  public  needs," 
and  within  the  sanction  of  the  "prevailing  mo- 
rality" and  "strong  and  preponderant  opinion," 
and   so   not   in   conflict  with   the   "due   process" 
clause. 

Under  either  method,  the  "reversal,"  "review," 
or  "setting  aside"  of  the  court's  "decision"  is  done 
by  a  direct  vote  of  the  people  at  an  election. 
Under  the  first  method,  they  declare  that  "due 
process"  shall  not  prevent  the  legislation  in  ques- 
tion; under  the  second  method,  they  merely  de- 
clare that  "due  process"  does  not  prevent  it.  The 
latter  proposal,  miscalled  the  "recall  of  judicial 


ioo      Majority  Rule  and  the  Judiciary 

decisions,"  and  not  much  more  accurately  called 
the  "popular  review  of  constitutional  decisions 
under  the  *  police  power/"  is  that  advanced  by 
Mr.  Roosevelt,  first  in  magazine  articles  and  his 
address  before  the  Ohio  Constitutional  Conven- 
tion at  Columbus,1  and  later  in  his  Carnegie  Hall 
address  in  New  York  City2  as  a  candidate  for  the 
presidential  nomination  of  his  party,  and  in  a 
number  of  less  formal  and  sustained  addresses  in 
other  parts  of  the  country.  A  more  accurate 
characterization  of  the  proposal,  as  we  shall  see, 
would  be  as  "direct  popular  re-definition  of  the 
scope  of  the  'police'  or  regulative  powers  of  the 
State,"  or  as  letting  the  majority  vote  as  to  what 
is  essentially  a  matter  of  the  mature  majority 
opinion. 

Needless  to  say,  the  process  of  constitutional 
amendment  may  be  made  so  complicated  and 
protracted  as  to  afford  no  expression  of  the  real 
popular  will  on  any  proposition  which  is  opposed 
by  any  active  special  interests  in  the  common- 
wealth, as  is  true  of  most  "welfare"  legislation. 
On  the  other  hand,  the  process  may  be  made  so 
lax  and  loose  as  to  take  away  the  proper  safe- 
guards of  full  popular  deliberation.  The  former 

1  The  Outlook,  February  24,  1912,  page  365. 

2  The  Outlook,  March  23,  1912,  page  618. 


Majority  Rule  and  the  Judiciary      101 

is  doubtless  the  case  in  such  States  as  Pennsyl- 
vania and  New  York,  where  upward  of  four  years 
is  most  commonly  required,  and  the  latter  may 
prove  to  be  the  case  in  California,  where  the  lapse 
of  but  one  year  is  required.  The  purpose  of  a 
provision  that  before  an  amendment  may  be  voted 
upon  by  the  people,  it  must  first  pass  two  succes- 
sive State  legislatures,  i.  e.y  not  merely  in  suc- 
cessive years,  but  also  legislatures  in  which  there 
has  been  a  change  of  the  personnel  of  the  State 
senate  as  well  as  the  more  numerous  branch,  is, 
of  course,  to  make  amendment  difficult  and  de- 
layed, and  within  the  control  of  political  leaders 
at  some  point  in  its  progress,  should  the  amend- 
ment be  opposed  by  those  whom  politicians  like 
to  assist  and  please.  The  purpose  of  a  provision 
that  the  electorate  may,  by  a  two-thirds  vote  or  a 
mere  majority,  in  any  year,  adopt  a  constitutional 
amendment  of  which  some  prescribed  notice  has 
been  given,1  is,  of  course,  to  make  the  matter  as 
little  susceptible  to  political  or  financial  control 
as  possible,  and  to  enable  the  voters  to  write  into 
their  State  constitutions  provisions  usually  and 
properly  contained  only  in  statutes,  but  which  the 
people  wish  to  place  beyond  the  power  of  the 
State  courts  to  nullify  or  impair.  California  and 

1  This  is  known  as  the  "  Constitutional  Initiative,"  i.  e.,  the  amend- 
ment may  be  initiated  by  the  people,  without  prior  formulation  by 
the  legislature. 


IO2      Majority  Rule  and  the  Judiciary 

some  others  of  the  Western  States  have  done  this, 
notably  as  to  their  provisions  for  public  regula- 
tion of  public  utilities,  since  by  writing  the  basic 
provisions  of  such  regulation  into  their  State  con- 
stitutions, the  power  of  the  State  courts  to  pro- 
nounce adversely  upon  them  is  taken  away,  and 
they  are  left  only  to  the  ultimate  scrutiny  of  the 
Supreme  Court  at  Washington.  It  is  this  situa- 
tion which  makes  some  of  the  more  recent  State 
constitutions  resemble  an  edition  of  the  consoli- 
dated statutes  rather  than  a  declaration  of  the 
organic  law  and  the  frame  of  government;  and 
where  this  course  is  pursued,  it  is  necessary  that 
amendment  shall  be  facile,  and  it  becomes  only 
natural  that  sweeping  changes  in  fundamental 
law  are  made  with  a  minimum  of  popular  de- 
liberation. 

Neither  too  long  and  complicated  nor  too  short 
and  hasty  a  process  of  amendment  can  be  ac- 
cepted as  a  fair  or  satisfactory  embodiment  of  the 
constitutional  amendment  method,  even  as  to  the 
situations  to  which  it  is  fairly  applicable.  In 
many  of  the  States  where  the  courts  have,  as 
Mayor  Gaynor  phrased  it,  "tried  to  apply  their 
legal  rules  of  thumb  to  social,  commercial,  and 
economic  matters,  .  .  .  generally  with  injury  to 
industry,  commerce,  and  the  social  good,"  the 
amendment  method  has,  it  will  be  conceded,  very 


Majority  Rule  and  the  Judiciary      103 

commonly  broken  down  and  proved  a  broken 
weapon  in  the  hands  of  those  who  sought  thereby 
to  reinstate  the  popular  will.  In  few  of  the  in- 
stances, already  referred  to  in  some  detail,  where 
statutes  by  way  of  regulation  of  the  conditions  of 
labor  have  been  nullified  by  the  courts  of  the  State 
of  their  first  enactment,  but  upheld  in  similar  or 
identical  form  in  another  State,  and  then  by  the 
Supreme  Court,  has  it  ever  been  brought  about 
that  the  constitution  of  the  first  State  was  amended 
so  as  to  permit  of  such  legislation.  It  is  just 
because  the  amendment  method  has  proved  so 
ineffectual,  in  practice,  in  many  or  most  of  the 
States,  that  those  who  oppose  legislation  "inter- 
fering" with  their  "right  to  run  their  business 
as  they  please"  are  so  aroused  and  angered  at 
the  suggestion  of  a  method  which  introduces, 
perhaps,  no  new  principle,  but  would  almost  cer- 
tainly be  more  effectual  in  practice.  The  advo- 
cacy of  a  practicable  method  has  now  forced 
many  persons  into  the  open,  in  confessing  that 
they  did  not  really  believe  in  what  it  had,  in 
theory,  already  and  always  been  possible  to  do, 
by  way  of  overcoming  an  adverse  judicial  deci- 
sion concerning  "welfare"  legislation. 

A    distinction    should    be    noted    between    the 
amendment    method,    as    utilized    in    instances 


104      Majority  Rule  and  the  Judiciary 

where  "specific"  constitutional  provisions  have 
been  interpreted,  probably  correctly  and  accord- 
ing to  both  their  letter  and  spirit,  by  the  court, 
and  the  same  method  when  invoked  as  to  deci- 
sions under  the  "due  process"  clause.  In  the 
former  class  of  cases,  the  people  have,  through 
their  constitution,  laid  down  an  explicit  and  prob- 
ably altogether  definite  rule  of  governmental  ac- 
tion, and  the  court  has  refused  to  enforce  only  an 
expression  of  the  legislative  will  which  runs  counter 
to  the  clearly  expressed  will  of  the  people.  In 
such  cases,  if  the  people  wish  to  reinstate  the 
measure  enacted  by  the  legislature,  they  can  do 
this  only  by  first  repealing  or  amending  the  pro- 
vision of  the  fundamental  law  which  stands  in 
the  way.  The  situation  where  the  "due  process" 
clause  has  been  held  to  be  the  sole  constitutional 
ban  upon  the  act  of  legislation  in  question  is 
very  different.  The  people  then  have  never  de- 
clared or  voted  upon  any  explicit  or  definite  rule 
of  action  and  policy  as  to  the  subject-matter  of 
the  act.  They  had  no  such  situation,  nor  any 
particular  or  definite  situation,  in  mind  when,  a 
hundred  years  or  more  ago,  they  adopted  a  con- 
stitution which  carried  over  the  "due  process" 
clause  from  Magna  Charta.  In  approving  this 
clause  they  meant  simply,  as  we  have  seen,  to 
prescribe  that  life,  liberty,  and  property  should  not 


Majority  Rule  and  the  Judiciary      105 

be  "taken"  except  by  procedure  and  for  causes 
which  do  not  violate  the  fundamental  ideas  of 
fairness  and  justice  as  held  by  the  prevailing  sen- 
timent among  Anglo-Saxon  peoples.  This  meant 
one  thing  when  Magna  Charta  was  wrung  from 
an  unwilling  monarch;  another,  when  the  ignor- 
ing of  it  was  a  cause  for  the  complaint  of  the 
early  colonies  against  the  British  King;  still  an- 
other when  it  was  written  into  the  Federal  con- 
stitution as  a  national  prohibition  upon  the  legis- 
lative activities  of  the  States  at  the  close  of  the 
Civil  War.  Therefore,  when  a  court  has,  under 
the  shelter  of  this  non-explicit  clause,  ruled  that 
a  given  act  contravenes  its  conceptions  of  the  pre- 
vailing moral  standards  as  to  what  the  State  may 
properly  do  in  the  premises,  the  need  is  not  for 
any  repeal  or  amendment  of  the  "due  process " 
clause  as  a  means  of  correcting  the  court's  mis- 
conception. The  adverse  decision  and  the  popu- 
lar desire  to  reinstate  the  act  held  "unconstitu- 
tional" by  virtue  of  this  clause  do  not  call  for 
any  change  in  the  fundamental  law;  they  do  not 
properly  give  rise  to  any  sentiment  for  the  repeal 
or  the  changed  wording  of  the  clause;  and  a  con- 
dition under  which  such  an  amendment  is  the 
only  available  means  of  reinstating  the  popular 
will  is  as  unnecessary  as  it  is  unfortunate.  All 
that  is  requisite  under  a  proper  method  of  pro- 


106      Majority  Rule  and  the  Judiciary 

cedure  would  be  a  concrete  and  paramount  ex- 
pression of  the  "preponderant  opinion"  of  the 
community,  that  the  act  in  question  does  not  vio- 
late fundamental  and  prevailing  ideas  as  to  what 
is  "immediately  and  greatly  necessary  for  the 
public  needs,"  for  such  an  expression  of  the  so- 
cial opinion  is  entitled  to  correct  and  overcome 
the  court's  original  view  as  to  what  that  opinion 
was,  and  then  there  would  be  no  need  for  any 
amendment  of  anything.  All  that  is  really  essen- 
tial, therefore,  is  a  substitution  of  the  deliberate 
popular  will  for  the  court's  "guess,"  and  while 
this  can  somewhat  clumsily  be  done  by  the  amend- 
ment method  as  well  as  by  the  alternative  method 
under  discussion,  it  is  to  be  noted  that  the  ques- 
tions arising  by  virtue  of  the  "due  process"  and 
"police  power"  provisions  stand  on  a  different 
footing  than  those  involving  "explicit"  constitu- 
tional provisions,  so  far  as  the  availability  of  the 
amendment  method  is  concerned. 

The  relative  advantages  of  Mr.  Roosevelt's 
proposal,  as  compared  with  the  "general  amend- 
ment" method,  are  discussed  in  detail  in  a  sub- 
sequent chapter.1 

1  Chapter  XI,  page  139,    et  seq.,  post. 


VIII 

MR.  ROOSEVELT'S  PROPOSAL  DEFINED 
AND  ILLUSTRATED 

Taking  the  "general  amendment"  method  as  it 
is,  however,  or  even  at  its  best,  are  there  any 
considerations  which  lead  properly  to  the  belief 
that,  in  the  case  of  "welfare"  legislation  as  af- 
fected by  the  "police  power"  limitation,  the  pro- 
posal identified  with  the  name  of  Mr.  Roosevelt 
is  a  more  conservative  and  suitable  method — not  an 
easier  method,  but  a  more  sound  method,  not  a 
more  sweeping  method,  but  a  more  adaptable  ^and 
well-restrained  method  ?  Is  it  not  already  clear  that 
there  are? 

Mr.  Roosevelt  first  used  the  incidental  phrase, 
"the  recall  of  judicial  decisions  on  constitutional 
questions."  As  he  explained  in  a  letter  to  the 
writer,  "I  used  this  phrase  to  show  that  nine 
times  out  of  ten,  when  men  talk  about  recalling 
a  judge,  what  they  were  really  concerned  about 
was  his  decision  on  a  certain  constitutional  ques- 
tion." From  the  point  of  view  of  the  early  un- 
derstanding of  the  real  character  and  merits  of 

the  proposal,  it  is  doubtless  unfortunate  that  it 

107 


io8      Majority  Rule  and  the  Judiciary 

did  not  have  the  usual  period  of  "laboratory" 
and  academic  formulation  and  consideration  be- 
fore it  was  flung  into  the  forum  of  politics.  That 
is  the  more  usual  history  of  suggestions  for  con- 
stitutional change,  and  such  a  preliminary  con- 
sideration makes  clear  all  the  implications  and 
furnishes  the  basis  for  a  more  sound  and  fair  dis- 
cussion than  takes  place  when  such  a  proposal 
makes  its  advent  under  political  auspices.  It 
may  even  have  been  unfortunate,  though  surely 
not  from  the  point  of  view  of  its  early  popularity 
and  ultimate  adoption,  that  its  public  advocacy 
was  launched  by  a  leader  in  the  political  sphere. 
That  has  hardly  tended  to  make  the  opponents 
of  his  personality  fair  or  considerate  of  his  prop- 
osition. But  is  it  not  also  something  of  a  re- 
proach to  the  American  bar  and  to  its  traditional 
position  of  leadership  in  all  that  pertains  to  our 
frame  of  government,  that  the  most  important 
proposal  for  constitutional  change  which  has  been 
made  since  the  close  of  the  war  between  the 
States  should  have  been  first  brought  to  general 
public  attention  by  a  layman,  and  was  at  first 
dismissed  with  snap-judgment  by  many  of  the 
leaders  of  the  bar? 

The  incidental  phrase  in  Mr.  Roosevelt's  orig- 
inal article1  on  the  subject  was  seized  upon  as  a 

1  The  Outlook,  January  6,  1912,  page  40. 


Majority  Rule  and  the  Judiciary      109 

catch-phrase  for  a  magazine  cover,  and  the  phrase 
has  persisted.  From  a  legal  point  of  view,  a 
more  unfortunate,  inaccurate,  and  misleading  char- 
acterization could  hardly  have  been  devised.  If 
not  all,  at  least  nearly  all,  of  the  vigorous  denun- 
ciation which  the  proposal  has  received  from  fair- 
minded  members  of  the  bar,  and  citizens  gener- 
ally, has  been  due  to  this  unfortunate  phrase  and 
to  a  failure  of  such  persons  to  examine  the  pro- 
posal with  care,  after  the  disapprobation  which 
the  initial  characterization  inevitably  aroused. 

It  is  well,  therefore,  to  preface  a  discussion  of  the 
method  with  a  statement  of  just  what  it  is  and 
what  it  is  not: 

I.  It  has  nothing  to  do  with  the  United  States 
Supreme  Court  or  its  decisions.  It  is,  in  fact,  only 
an  effort  and  a  means  to  bring  laggard  State 
courts  of  ultimate  appeal  up  to  the  progressive 
standards  set  by  the  nation's  great  court.  If  you 
do  not  agree  with  those  standards,  your  quarrel 
is  with  Chief  Justice  White  and  his  colleagues, 
and  not  with  Colonel  Roosevelt  or  Dean  Lewis. 
The  question  whether  there  is  any  logical  reason 
why  the  method  should  not  be  ultimately  applied 
also  in  the  Federal  sphere  will  be  discussed  in  an- 
other chapter.1  Nothing  of  the  sort  has  been  pro- 
posed, however. 

1  Chapter  XII,  page  156  et  scq.,  post. 


no      Majority  Rule  and  the  Judicially 

2.  It  would  in  no  way  weaken  or  impair  ike  in- 
terpretation or  enforcement  of  the  guaranties  of  the 
Federal  constitution  according  to  the  meaning  thereof 
declared  by  the  Supreme  Court  of  the  United  States. 
The  Federal  constitution  (XlVth  Amendment) 
provides  that  "No  State  shall  .  .  .  deprive  any 
person  of  ...  property  without  due  process  of 
law."  That  is  just  what  each  State  constitu- 
tion provides  that  the  State  shall  not  do.  If  the 
"due  process"  clause  were  stricken  from  every 
State  constitution,  no  State  would  thereby  be  en- 
abled to  "take"  the  life,  liberty,  or  property  of  any 
person  without  "due  process."  Of  course,  if  any 
legislation  held  "unconstitutional"  by  the  State 
court  under  the  "due  process"  clause  was  also 
deemed  "unconstitutional"  by  the  Federal  court 
of  national  appeal,  it  could  not  be  enforced,  either 
through  the  adoption  of  a  "general  amendment" 
to  the  State  constitution  or  the  alternative  method 
under  discussion.  The  proposal  therefore  relates 
only  to  instances  in  which  a  State  court  lags  be- 
hind the  Federal  Supreme  Court  in  its  concep- 
tion of  the  permissible  scope  of  "welfare"  legis- 
lation. If  any  corporation  or  its  attorneys  be- 
lieve that  the  constitutional  provision  last  above 
quoted  would  not,  as  interpreted  by  the  Supreme 
Court  of  the  United  States,  afford  its  property 
and  earnings  a  sufficient  protection  under  the 


Majority  Rule  and  the  Judiciary      1 1 1 

law,  such  remarks  should  be  presented  as  amicus 
curies  in  the  next  case  arising  under  the  Four- 
teenth Amendment. 

3.  It  has  nothing  to  do  with  any  "specific"  clause 
of  any  constitution;  that  is  to  say,  with  any  clause 
which  has  a  definite  or  ascertainable  meaning  that 
does  not  of  necessity  vary  more  or  less — properly 
to  a  large  degree — with  the  time,  the  locality,  and 
the  particular  conditions  disclosed.     It  would  af- 
ford the  people  no  means  of  redress  or  mode  of 
procedure  as  to  any  legislative  act  which  a  court 
had  pronounced  within  the  inhibition  of  any  "spe- 
cific" clause  or  any  clause  except  the  "due  proc- 
ess" proviso.     It  is  to  preserve  unimpaired  the 
powers  of  the  courts  to  interpret  and  enforce  the 
"specific"  provisions  that  makes  it  the  part  of 
wisdom  now  to  restore  to  the  people  themselves 
the  determination  of  what  is  called  for  by  the 
"prevailing  morality"  and  "preponderant  opin- 
ion."    Popular  resentment  against  judicial  mis- 
use of  the  "due  process"  clause  has  been  endan- 
gering the  whole  fabric  of  judicial  application  of 
the  fundamental  law  as  declared  by  the  people  in 
their  constitutions. 

4.  It  would  not  in  any  way  repeal  or  amend  or 
destroy  the  "due  process"  clause  of  any  State  con- 
stitution, unless  it  be  that  the  Supreme  Court  of 
the  United  States  has  already  repealed  or  amended 


112      Majority  Rule  and  the  Judiciary 

or  vitiated  that  proviso  as  contained  in  the  Fed- 
eral document.  The  clause  would  stand  just  as 
it  is  in  every  State  constitution,  and  be  open  to 
judicial  interpretation  and  application  just  as  at 
present,  except  that  there  would  be  the  possibility 
that  the  people  would  elect  to  substitute,  as  to  a 
particular  act,  the  United  States  Supreme  Court's 
view  that  the  act  was  "constitutional"  for  the 
State  court's  determination  that  the  act  was  "un- 
constitutional." That  is  to  say,  in  all  cases  where 
it  seemed  certain  or  probable  that  the  Federal 
view  would  uphold  the  constitutionality  of  the 
law,  there  would  be  the  possible  ultimate  decision 
by  the  people  that,  as  a  matter  of  fact,  a  measure 
which  had  been  rejected  in  the  State  court  as  a 
matter  of  law,  should  be  sustained  as  within  "the 
great  public  needs."  Those  who  do  not  believe 
that  the  majority  opinion  of  the  people  should 
have  this  ultimate  power  of  reversal,  should  try 
to  convince  their  own  State  courts,  if  need  be, 
that  in  the  first  instance  the  "preponderant  opin- 
ion" and  "prevailing  morality"  should  determine 
the  scope  of  the  regulative  power  in  matters  of 
governmental  policy. 

5.  It  has  nothing  to  do  with  the  "recall"  of  judges, 
except  that  it  would  do  away  with  the  conditions 
which  may  lead  many  of  our  States  to  adopt  the 
"recall"  of  judges.  Only  the  advent  of  this  more 


Majority  Rule  and  the  Judiciary      113 

conservative  and  constructive  proposal  has  checked 
the  demand  for  the  "judicial  recall,"  which  was 
making  so  rapid  headway,  even  where  local  con- 
ditions little  warranted  it. 

6.  It  has  nothing  to  do  with  the  "decision"  or 
judgment  in  any  suit.  The  common  misrepresen- 
tation that  Mr.  Roosevelt  proposes  a  referendum 
upon  the  outcome  of  litigation  can  hardly  be  less 
than  deliberate.  The  "cover"  catch-phrase,  "the 
recall  of  judicial  decisions,"  used  only  to  carry 
over  into  the  discussion  of  this  alternative  pro- 
posal the  phraseology  employed  in  the  discussion 
of  the  "recall  of  judges,"  unfortunately  lent  itself 
somewhat  to  such  a  misrepresentation;  but  the 
course  of  some  members  of  the  bar  in  represent- 
ing that  the  proposal  is  for  "the  reversal  of  judi- 
cial decisions  by  popular  vote"  does  little  credit 
to  their  candor  or  their  means  of  information. 
The  proposed  "referendum"1  would  concern  a 
statute  and  not  a  judicial  decision,  and  the  out- 
come would  be  the  ascertainment  of  the  decisive 
fact  of  the  "preponderant  opinion"  and  "prevail- 
ing morality"  as  to  that  act,  and  not  the  reversal 
of  any  judgment  or  decree  rendered  by  any  court. 
From  the  foregoing  it  of  course  follows  that  any 
such  referendum  could  follow  only  a  determina- 
tion of  the  highest  appellate  court  of  a  State,  and 

1  An  illustrative  form  is  set  out  on  page  117,  -post. 


114      Majority  Rule  and  the  Judiciary 

could  not  be  predicated  upon  a  determination  by 
either  a  trial  court  or  a  tribunal  of  intermediate 
appeal. 

If  the  foregoing  defines  the  proposition  by  stat- 
ing what  it  is  not,  we  may  proceed  with  the  state- 
ment of  what  it  is.  In  his  Carnegie  Hall  address 
Mr.  Roosevelt  said:1 

I  am  proposing  merely  that  in  a  certain  class 
of  cases  involving  the  police  power,  when  a  State 
court  has  set  aside  as  unconstitutional  a  law  passed 
by  the  legislature  for  the  general  welfare,  the  ques- 
tion of  the  validity  of  the  law — which  should  de- 
pend, as  Justice  Holmes  so  well  phrases  it,  upon 
the  prevailing  morality  or  preponderant  opinion 
— be  submitted  for  final  determination  to  a  vote 
of  the  people,  taken  after  due  time  for  considera- 
tion. (And  I  contend  that  the  people,  in  the  nature 
of  things,  must  be  better  judges  of  what  is  the 
preponderant  opinion  than  the  courts,  and  that 
the  courts  should  not  be  allowed  to  reverse  the 
political  philosophy  of  the  people. 

In  other  words,  the  proposal  is  that  the  direct 
expression  of  the  popular  will  be  made  the  ulti- 
mate guide  in  determining  what  the  States  may 
do  in  the  exercise  of  their  "police"  or  regulative 
powers,  and  that  this  shall  be  accomplished  by 
permitting  the  people,  at  a  proper  interval  after 

1  "The  Right  of  the  People  to  Rule":  The  Outlook,  March  23, 1912, 
page  620. 


Majority  Rule  and  the  Judiciary      115 

a  State  statute  has  been  held  by  the  State  courts 
to  be  "unconstitutional"  as  not  within  the  "police 
power,"  to  vote  directly  and  decisively  upon  the 
question  whether  they  consider  it  within  the  scope 
of  their  constitution  as  they  made  it. 

The  procedure  by  which  this  would  be  accom- 
plished would  probably  be  more  simple  and  un- 
derstandable than  the  usual  processes  of  consti- 
tutional amendment.  A  suitable  provision  for  a 
referendum  in  this  class  of  cases  would  be  em- 
bodied in  the  State  constitution.  Such  an  amend- 
ment might,  perhaps,  well  take  the  form  of  read- 
ing into  the  "due  process"  clause  of  the  State 
constitution  the  language  or  essential  holding  of 
the  United  States  Supreme  Court  in  Noble  State 
Bank  v.  Haskell,1  to  somewhat  of  the  following 
effect:2 

Provided,  however,  that  nothing  in  this  section3 
contained  shall  in  itself  be  construed  to  prevent 
the  enactment  and  enforcement  of  legislation 
which  is  held  by  the  prevailing  morality  or  the 
strong  and  preponderant  opinion  of  the  people 

1  219  United  States  Reports,  page  104. 

2  No  attempt  is  made  in  this  formulation  to  suggest  perfected  legal 
phraseology,  or  to  present  any  views  as  to  what  percentage  of  the 
electorate  shall  be  required  to  petition  for  or  participate  in  the  refer- 
endum vote.    The  purpose  is  only  to  present  the  substance  of  the 
plan  in  a  concrete  form. 

8  Of  course  where,  as  in  New  York,  other  provisions  are  combined 
with  the  "  due  process  "  clause  into  one  section,  the  terms  of  refer- 
ence to  that  clause  would  necessarily  bejnore  explicit. 


n6      Majority  Rule  and  the  Judiciary 

of  this  State  to  be  immediately  and  greatly  neces- 
sary to  the  welfare  of  the  State  or  the  people  there- 
of; and  in  the  event  that  the  highest  court  of  ap- 
pellate jurisdiction  in  this  State  shall  pronounce 
invalid  under  this  section1  an  act  of  the  legislature 
not  in  conflict  with  any  other  provision  of  this  con- 
stitution, there  shall  be  held,  if  not  less  than  twelve 
(12)  per  centum  of  the  duly  qualified  voters  in  not 
less  than  one-fifth  of  the  counties  of  the  State  shall 
so  petition  the  legislature  in  writing,  a  referendum 
to  the  duly  qualified  voters  of  the  State  upon  the 
question  whether  the  said  act  of  the  legislature 
shall  stand  and  be  enforced,  the  decision  of  the 
court  to  the  contrary  notwithstanding,  such  ref- 
erendum election  to  be  held  not  less  than  one 
year  from  the  date  of  the  handing  down  of  such 
decision  of  the  said  court,  at  the  time  of  the  gen- 
eral election  in  that  year,  and  otherwise  in  such 
manner  and  subject  to  such  regulations  as  this 
constitution  and  the  legislature  may  prescribe; 
and  in  the  event  that  at  such  referendum  elec- 
tion there  shall  be  cast  in  favor  of  the  enactment 
and  continuance  in  effect  of  the  said  act  so  voted 
upon  a  number  of  votes  equal  to  a  majority  of  the 
total  number  of  voters  duly  qualified  to  take  part 
in  the  general  election  for  that  year,  the  same  shall 
be  and  continue  in  effect  from  and  after  the  date 
of  the  canvass  of  the  votes  cast  in  the  said  referen- 
dum election,  the  decision  of  the  said  court  to  the 
contrary  notwithstanding. 

Under  such  a  constitutional  provision  as  the 
foregoing,  and  regulations  enacted  to  govern  such 
elections  as  therein  prescribed,  the  question  sub- 

xSee  note  3,  page  115,  ante. 


Majority  Rule  and  the  Judiciary      117 

mitted  to  the  electorate  at  the  referendum  elec- 
tion might,  perhaps,  take  something  of  this  form, 
based  upon  the  Workingmen's  Compensation  Act 
held  "unconstitutional"1  in  New  York  State: 

Shall  the  act  of  June  25,  1910,  commonly  known 
as  the  Wainwright  Workingmen's  Compensation 
Law,  entitled  "an  Act  to  amend  the  Labor  Law, 
in  relation  to  Workingmen's  compensation  in  cer- 
tain dangerous  employments,"  and  providing,  in 
substance  (taking  in,  perhaps,  a  very  brief  resume 
of  the  essential  provisions  of  the  act)  be  reinstated 
and  continued  in  full  force  and  effect  as  law,  the 
decision  of  the  Court  of  Appeals  in  Ives  v.  South 
Buffalo  Ry.  Co.  (201  N.  Y.  Reports  at  page  271)  to 
the  contrary  notwithstanding?  Yes.  No. 

There  will,  of  course,  be  advocated  suggestions 
for  something  more  of  conservative  safeguards  and 
requirements  for  a  longer  period  of  popular  delib- 
eration before  the  vote  is  taken,  and  there  will 
also  be  heard  suggestions  that  the  foregoing  would 
be  too  dilatory  a  procedure.  Judge  Peter  S. 
Grosscup,  former  presiding  Judge  of  the  United 
States  Circuit  Court  of  Appeals  for  the  Third 
Circuit,  in  an  able  letter2  in  advocacy  of  this  "ref- 
erendum" proposal,  includes  in  his  statement 
thereof  a  requirement  that  the  matter  should  be 
submitted  to  the  people  only  if  the  act  held  "un- 

1  Ives  v.  South  Buffalo  Ry.  Co.,  201  New  York  Reports,  page  271. 
'Pages  122  to  125,  post. 


n8      Majority  Rule  and  the  Judiciary 

constitutional"  by  the  court  shall  be  repassed 
by  the  legislature.  It  is  not  at  all  the  purpose 
here  to  pass  upon  the  merits  of  any  of  these  sug- 
gestions as  to  method,  or  to  justify  the  details  of 
the  concrete  provisions  above  formulated,  or  even 
to  formulate  the  most  desirable  mode  of  procedure. 
The  foregoing  is  offered  by  way  of  illustration 
merely. 


IX 


THE   TESTIMONY   OF   EXPERTS   AS   TO 
PRACTICAL  ADVANTAGES 

Some  men  are  writing  and  talking  as  though 
there  was  something  in  this  "referendum"  pro- 
posal which  should  startle  the  masses  at  their 
meals.  It  is  deemed  something  novel,  radical,  un- 
precedented, unsupported  except  by  an  ambitious 
layman  who  seeks  the  presidency,  and  by  such  of 
his  supporters  as  are  willing,  because  of  a  belief  in 
the  general  sincerity  and  soundness  of  his  political 
activities,  to  overlook  his  advocacy  of  this  pro- 
posal. This  volume  has  no  concern  with  the  mat- 
ter as  a  political  issue,  or  with  its  effect  upon  the 
political  or  personal  fortunes  of  individuals.  The 
outcome  of  any  political  contests  of  the  present 
year,  or  the  present  decade,  cannot  accomplish  the 
adoption  of  the  proposal  in  a  majority  of  the 
States  within  that  period.  Constitutional  changes 
do  not  come  so  quickly.  On  the  other  hand,  no 
amount  of  popular  misunderstanding  or  disap- 
proval at  the  present  time,  and  no  political  suc- 
cess or  defeat  of  any  of  its  advocates,  can  per- 

119 


I2O      Majority  Rule  and  the  Judiciary 

manently  determine  the  ultimate  judgment  of  the 
people  thereupon. 

The  charge  that  the  proposal  has  only  political 
and  non-legal  advocacy  makes  it  proper,  how- 
ever, that  a  detailed  discussion  of  this  method 
of  procedure,  as  compared  with  that  of  the  gen- 
eral amendment  of  the  "due  process "  clause, 
should  be  preceded  with  some  reference  to  what 
has  been  said  in  its  behalf  by  those  outside  the 
influence  of  party  or  factional  politics.  Quota- 
tion may  first  be  made  from  the  statement  of  a 
trained  and  impartial  observer,  Dean  William 
Draper  Lewis,  of  the  University  of  Pennsylvania 
Law  School,  who  long  has  been  a  sound  teacher  of 
the  law  and  a  sagacious  counsellor  in  the  formula- 
tion of  much  progressive  legislation.  Following 
Mr.  Roosevelt's  Columbus  speech,  Dean  Lewis 
said,  through  the  newspapers  of  Philadelphia:1 

To  a  lawyer,  the  most  interesting  suggestion 
Colonel  Roosevelt  has  made  is  to  allow  the  people, 
after  consideration,  to  re-enact  legislation  which  a 
court  decision  has  declared  is  contrary  to  some 
clause  in  the  existing  State  constitution. 

Any  one  who  has  been  asked  to  draft  specific 
amendments  to  State  constitutions  will  hesitate 
to  condemn,  without  serious  consideration,  the 

1  See  also  an  address  entitled  "The  'Recall  of  Judicial  Decisions'  on 
State  Constitutional  Questions,"  by  William  Draper  Lewis,  at  The 
Aldine  Club,  New  York  City,  printed  in  an  amplified  form  in  the 
Annals  of  the  American  Academy  of  Political  Science,  1912. 


Majority  Rule  and  tlie  Judiciary      121 

suggestion  made  by  Colonel  Roosevelt.  To  take 
a  concrete  instance:  the  New  York  Court  of 
Appeals  declared  the  Workmen's  Compensation 
Act,  passed  by  the  New  York  legislature,  as  de- 
priving in  its  operation  the  employer  of  his  prop- 
erty without  due  process  of  law.  A  number  of 
amendments  to  the  New  York  constitution,  de- 
signed to  validate  a  compensation  act,  have  been 
drafted,  and  it  is  not  unlikely  that  one  of  them 
will  be  adopted.  Personally,  one  or  more  of  these 
amendments  having  been  shown  to  me,  I  cannot 
but  feel  that  constitutional  amendments  designed 
to  meet  particular  cases,  run  the  danger  of  be- 
ing so  worded  as  to  produce  far-reaching  results 
not  anticipated  or  desired  by  the  people.  Colonel 
Roosevelt's  suggestion  avoids  this  difficulty  and 
danger.  If  a  persistent  majority  of  the  people 
of  New  York  State  want  a  Workmen's  Compensa- 
tion Act,  they  should  have  it.  But,  in  order  to 
obtain  it  they  should  not  be  driven  to  pass 
an  amendment  to  their  State  constitution,  which 
may  have  effects  which  they  did  not  anticipate 
or  desire.  Let  them  pass  on  the  act,  as  passed 
by  the  legislature,  after  a  full  knowledge  that 
their  highest  court  has  unanimously  expressed  its 
opinion  that  the  act  is  contrary  to  the  constitu- 
tion which  the  people  at  a  prior  election  have  de- 
clared to  be  their  fundamental  law. 

I  may  not  always  approve  of  what  the  persist- 
ent majority  wants.  I  might  sometimes  think 
the  measure  unwise.  But  that  doesn't  alter  the 
right  of  that  majority  to  enforce  its  will  in  govern- 
ment. The  Roosevelt  idea,  it  seems  to  me,  sup- 
plies an  instrument  by  which  that  majority  can 
enforce  its  will  in  the  most  conservative  way.  It 
makes  explosions  unnecessary. 


122      Majority  Rule  and  the  Judiciary 

I  would  have  been  very  proud  to  have  been 
the  author  of  that  plan,  although  I  want  to  em- 
phasize the  fact  that  it  involves  no  new  principle, 
only  a  new  method. 

Dean  Lewis  closed  his  statement  with  the  ex- 
pression of  the  personal  opinion,  held  by  him  at 
that  time,  that  it  was  unfortunate  that  "this  great 
idea"  should  have  been  first  proposed  by  anyone 
so  active  in  the  political  world. 

The  "next  witness"  summoned  may  well  be  the 
former  Presiding  Judge  of  the  United  States  Cir- 
cuit Court  of  Appeals  for  the  Third  Circuit,  a 
jurist  of  long  experience  and  a  brilliant  student  of 
our  constitutions,  the  Honorable  Peter  S.  Gross- 
cup,  of  Chicago.  In  a  letter  dated  April  2,  1912, 
he  first  stated  his  point  of  view  as  to  the  pending 
political  contest  and  the  relation  of  the  same  to 
the  constitutional  question  under  consideration:1 

As  I  told  you,  I  am  not  in  this  primary  cam- 
paign at  all — neither  for  Roosevelt  nor  for  Taft. 
But  I  do  not  like  to  see  either  misunderstood, 
and  certainly  not  purposely  misrepresented.  On 
what  is  now  known  as  the  "recall  of  decisions" 
Mr.  Roosevelt  is,  it  seems  to  me,  greatly  misun- 
derstood— at  the  beginning  I,  too,  misunderstood 
him — and  is  beginning  to  be  purposely  misrepre- 
sented. That  is  unfair. 

With  this  preliminary  statement,  Judge  Gross- 
cup  proceeded  with  an  illuminating  discussion  of 

1  Letter  to  Mr.  Medill  McCormick,  dated  April  2,  1912. 


Majority  Rule  and  the  Judiciary      123 

the  proposal  under  consideration.  Some  of  his 
characterizations,  and  perhaps  to  some  extent  his 
view-point,  as  to  the  nature  and  basis  of  the  plan 
may  not  be  accepted;  but  his  testimony  to  its 
desirability,  in  the  light  of  his  long  judicial  experi- 
ence, may  tend  to  relieve  it  of  the  imputation  that 
it  finds  support  only  in  a  longing  for  political  in- 
novation and  adventure.  He  said: 

The  truth  is  that  what  Mr.  Roosevelt  proposes 
is  ...  not  "recall  of  decisions",  nor  " interpre- 
tation by  the  people"  of  the  constitution,  nor 
" appeal  from  the  courts  to  the  mob,"  nor  "de- 
cision by  town  meetings."  The  function  of  the 
court  is  to  decide;  to  invade  that  function  would 
be  more  or  less  revolutionary.  But  the  function 
to  make  and  unmake,  alter  and  amend  the  con- 
stitution under  which  they  live  still  remains  with 
the  people;  to  impair  that  function  would  be 
equally  revolutionary.  What  Mr.  Roosevelt  really 
proposes  is  that  the  people  shall  exercise  a  method 
of  altering  and  amending  their  constitution  more 
adaptable  than  the  one  now  in  vogue — not  an 
easier  method  but  a  more  adaptable  method. 

Let  me  illustrate  what  I  mean  with  the  New 
York  Workingmen's  Compensation  Act.  The  con- 
stitution contains  the  clause  that  life,  liberty  or 
property  shall  not  be  taken  except  on  "due  proc- 
ess of  law";  that  prohibition  is  one  of  our  wisest 
constitutional  guaranties.  The  Court  of  Appeals 
held  that  the  Workingmen's  Compensation  Act 
was  in  effect  a  taking  of  property  without  "due 
process  of  law";  that  was  a  concrete  instance 
where  this  wise  constitutional  guaranty  worked 


124      Majority  Rule  and  the  Judiciary 

out  a  public  misfortune.  To  strike  out  the  con- 
stitutional provision  entirely  by  an  amendment 
would  not  do — that  prohibition  has  too  important 
a  function  to  perform  in  the  regulation  of  men's 
affairs  in  society  to  be  stricken  out.  But  to  per- 
mit that  prohibition  to  stand  as  a  bar  against 
such  acts  as  the  Workingmen's  Compensation  Act 
is  something  else  not  right — the  Workingmen's 
Compensation  Act  has  also  a  too  important  func- 
tion to  perform  in  the  regulation  of  men's  affairs  in 
society,  to  be  stricken  out  as  "unconstitutional." 
Let  both  stand — that  is  the  ideal  solution.  And 
to  do  this,  let  an  act  such  as  the  Workingmen's 
Compensation  Act,  when  found  to  be  unconstitu- 
tional as  the  constitution  now  stands,  be  resub- 
mitted  to  the  legislature,  and,  if  repassed,  be 
submitted  to  the  people  at  some  subsequent  elec- 
tion (the  precise  formula  of  altering  or  amending 
the  constitution  as  now  provided)  whereupon,  the 
people  having  so  voted,  the  constitution  stands 
so  amended  that  the  given  act  of  the  legislature 
submitted,  and  such  amendments  or  alterations 
of  the  same  as  come  within  its  original  scope, 
become  constitutionally  excepted  from  the  prohibi- 
tion— the  constitutional  prohibition  in  all  other 
respects  standing  as  before.  This  is  not  "inter- 
pretation," nor  "recall  of  decisions,"  nor  any 
"decision"  at  all,  in  the  judicial  sense  of  the  word, 
but  "alteration"  or  "amendment"  of  the  consti- 
tution within  the  time-honored  function  of  the 
people  to  alter  and  amend,  and  within,  too,  all 
those  precautions  for  deliberation  usual  to  such 
propositions  to  amend.  Indeed,  in  substance  Mr. 
Roosevelt's  proposition  is  nothing  more  than  a 
:,  method  of  adjusting  the  constitution  to  the  needs  of 
the  people  as  they  arise,  without  interfering  with 


Majority  Rule  and  the  Judiciary       125 

its  wholesome  guaranties  in  any  other  respect,  and 
will  some  day,  I  believe,  be  accepted  as  a  better  way 
of  re-adapting  our  constitution  to  the  needs  of  the 
times  than  by  wholesale  amendment. 

With  these  quotations  from  acceptable  author- 
ity, we  may  inquire  as  to  some  of  the  advantages 
of  Mr.  Roosevelt's  proposal,  in  itself  and  as  com- 
pared with  the  "general  amendment"  method. 


X 

MR.  ROOSEVELT'S  PROPOSAL  AND  THE 
TRADITIONS  OF  JUDICIAL  PROCEDURE 

The  assertion  is  commonly  made  that  as  a  mat- 
ter of  principle  and  as  a  matter  of  method,  the 
proposal  of  Mr.  Roosevelt  is  radically  at  variance 
with  what  may  be  termed  the  traditions  and  basic 
conceptions  of  judicial  procedure,  as  obtaining  in 
Anglo-Saxon  jurisdictions.  That  is  a  fair  chal- 
lenge which  deserves  a  fair  reply. 

Is  not  the  ultimate  popular  definition  of  the  scope 
of  the  "police  power"  a  method  strictly  in  accord- 
ance with  the  decision  and  doctrine  of  the  Supreme 
Court  of  the  United  States?  If,  as  Mr.  Justice 
Holmes  has  indicated,  the  "police  power"  of  a 
State  should  be  deemed  to  sanction  legislation, 
not  forbidden  by  any  other  constitutional  provi- 
sion, which  is  "held  by  the  prevailing  morality 
or  strong  and  preponderant  opinion  to  be  greatly 
and  immediately  necessary  to  the  public  welfare,"  * 
it  certainly  seems  proper  to  let  the  people  vote  as 
to  what  their  preponderant  opinion  really  is,  if 

1  Noble  State  Bank  v.  Haskell,  ai^jUnited  States  Reports,  pages 
104,  in. 

126 


Majority  Rule  and  the  Judiciary      127 

a  considerable  number  of  the  electorate  think 
that  opinion  has  been  incorrectly  gauged  by  the 
court.  In  fact,  what  other  way  could  there  be 
of  really  determining  what  the  majority  opinion 
as  to  the  fundamental  justice  and  fairness  of  the 
regulative  measure  in  fact  is?  We,  of  course, 
could  continue  to  let  the  courts  "guess"  what 
the  "preponderant  opinion"  is,  as  we  have  been 
doing,  or  we  could  take  away  the  courts'  power, 
as  some  propose,  and  let  the  legislature's  initial 
"guess"  be  final;  but  why  let  anybody  "guess" 
as  to  what  the  deliberate  opinion  of  our  people 
is  as  to  something  which  vitally  concerns  them 
— ;why  not  let  the  people  themselves  vote  and 
say?  That  is  as  fair  to  the  judges  as  to  the 
legislature  and  the  people.  It  may  be  added  that 
this  proposal  would  seem  to  be  quite  in  line  with 
the  view  of  the  New  York  court  itself,  for,  in 
the  Ives  case,  after  paying  high  compliment  to  the 
excellence  and  public  importance  of  the  recom- 
mendations of  the  Wainwright  Commission  as  em- 
bodied in  the  Workingmen's  Compensation  Act 
under  consideration,  the  court  said:1 

We  have  already  admitted  the  strength  of  this 
appeal  to  a  recognized  and  widely  prevalent  senti- 
ment',  but  we  think  it  is  an  appeal  which  should 
be  made  to  the  people  and  not  to  the  courts. 

1  20 1  New  York  Reports,  pages  271,  289. 


128      Majority  Rule  and  the  Judiciary 

That  is  what  is  proposed  in  the  plan  under  con- 
sideration. How  else  could  this  "appeal"  as  to 
a  particular  act,  be  "made  to  the  people  and  not 
to  the  courts,"  after  the  court  has  rejected  the 
statute  which  the  people's  representatives  enacted, 
and  the  "widely  prevalent  sentiment"  approves? 

Is  not  the  ultimate  popular  determination  of  the 
"prevailing  morality"  and  "preponderant  opinion" 
a  method  in  accordance  with  the  traditional  func- 
tions and  procedure  of  our  courts  themselves  ?  His- 
torically, it  has  been  the  function  of  the  judge 
to  interpret  and  declare  the  lawy  and  to  leave 
to  the  vicinage,  or,  later,  in  the  conduct  of  or- 
dinary trials,  to  the  jury,  the  determinations  of 
questions  of  fact.  Matters  of  usage,  custom,  pre- 
vailing standards,  common  repute,  preponderant 
opinion,  and  the  like,  have  traditionally  been 
matters  for  determination  by  the  arbiters  of  fact, 
by  the  persons  who  knew  the  conditions,  rather 
than  by  the  judges  themselves.  Ascertainment  of 
these  matters  has  never  been  looked  upon  as 
"decisions"  upon  questions  of  law,  in  the  judi- 
cial sense.  The  interpretation  and  application  of 
the  "specific"  and  explicit  provisions  of  a  written 
constitution  are,  of  course,  matters  of  law.  But 
to  determine  whether  a  particular  legislative  act 
is  "sanctioned"  by  "usage"  or  by  "the  prevail- 
ing morality"  or  by  the  "strong  and  preponder- 


Majority  Rule  and  the  Judiciary      129 

ant  opinion,"  or  even  whether  it  is  "called  for 
by  the  general  interests  of  the  community,*'  or  is 
"necessary  for  the  comfort,  health,  and  prosper- 
ity of  the  State,"  is  essentially  a  question  of  fact. 
Is  it  not  therefore  appropriate,  from  the  view- 
point of  legal  procedure  as  well  as  policy,  to  af- 
ford at  least  a  referendum  to  the  people  as  a 
check  against  possible  errors  by  the  court,  in  de- 
termining a  matter  not  within  the  traditional  or 
the  anticipated  functions  of  judges? 

"Interpretation"  of  the  scope  of  the  "police 
power"  and  the  prohibitions  of  the  "due  process" 
clause,  thus  stands  on  a  different  footing  than 
other  "constitutional"  questions,  and  the  propri- 
ety of  a  popular  reference  to  determine  the  ulti- 
mate fact  becomes  apparent.  But  if  it  be  as- 
serted that  only  under  the  most  recent  decisions 
of  the  Supreme  Court  of  the  United  States  has 
there  been  judicial  recognition  of  these  factors, 
"outside  the  four  corners"  of  the  constitutional 
instrument,  as  elements  in  "interpreting"  consti- 
tutional provisions  of  this  character,  the  refuta- 
tion may  be  found  in  New  York  State  itself.  In 
the  case  of  Rathbone  v.  Wirth  (1896),  decided  by 
the  Appellate  Divison  of  the  Supreme  Court  for 
the  Third  Judicial  Department  of  the  State,  the 
court,  by  Herrick,  J.,  with  Parker,  P.  J.,  and 
Merwin,  J.,  concurring,  gave  hearty  approval  to 


130      Majority  Rule  and  the  Judiciary 

as  clear  and  graceful  a  statement  of  this  essential 
doctrine  as  may  be  found  in  all  law  and  literature: * 

As  has  been  said  by  one  of  the  most  eminent 
authorities  upon  constitutional  law  in  this  coun- 
try, Mr.  Justice  Cooley,  "If  this  charter  of  State 
government  which  we  call  a  constitution  were  all 
there  was  of  constitutional  command;  if  the  us- 
ages, the  customs,  the  maxims  that  have  sprung 
from  the  habits  of  life,  modes  of  thought,  methods 
of  trying  facts  by  the  neighborhood,  and  mutual 
responsibility  in  neighborhood  interests,  the  pre- 
cepts which  have  come  from  the  revolutions  which 
overturned  tyrannies,  the  sentiments  of  manly 
independence  which  impelled  our  ancestors  to 
summon  the  local  community  to  redress  local 
evils,  instead  of  relying  upon  king  or  legislature 
at  a  distance  to  do  so — if  a  recognition  of  all  these 
were  to  be  struck  from  the  body  of  our  constitu- 
tional law,  a  lifeless  skeleton  might  remain;  but 
the  living  spirit,  that  which  gives  it  force  and 
attraction,  which  makes  it  valuable  and  draws  to 
it  the  affections  of  the  people,  that  which  distin- 
guishes it  from  the  numberless  constitutions,  so- 
called,  which  in  Europe  have  been  set  up  and 
thrown  down  within  the  last  hundred  years,  many 
of  which,  in  their  expressions,  have  seemed  equally 
fair  and  to  give  equal  promise  with  ours,  and  have 
only  been  wanting  in  the  support  and  vitality 
which  these  alone  can  give — this  living  and  breath- 
ing spirit,  which  supplies  the  interpretation  of  the 
words  of  the  written  charter,  would  be  utterly 
lost  and  gone."  (People  ex  rel.  LeRoy  v.  Hurlbut 
et  al.y  24  Mich.  44.) 

1 6  New  York  Appellate  Division  Reports,  page  277. 


Majority  Rule  and  the  Judiciary      131 

Is  not  the  ultimate  popular  determination  of  the 
scope  of  the  (( police  power"  the  method  which  best 
affords  a  standard  at  once  conservative  and  yet  elas- 
tic and  progressive  enough  to  meet  changing  condi- 
tions and  needs?  Some  statements  in  the  earlier 
portions  of  this  volume  may  have  been  read  to 
be  a  reflection  upon  some  of  the  State  courts. 
Nothing  written  was  in  fact  so  intended  as  to  any 
court  or  judge  discussed,  and  hardly  as  to  any 
particular  decision.  The  criticism  should  rather 
be  of  the  people  and  their  leaders  for  permitting 
the  State's  powers  to  promote  the  welfare  of  its 
people  to  rest  upon  the  legal  precedents  as  to 
what  may  be  done  rather  than  our  legislative  wis- 
dom and  executive  experience  as  to  what  should 
be  done.  As  was  said  by  Chief-Justice  Baldwin, 
now  Governor  of  Connecticut,  whom  surely  none 
will  accuse  of  undue  "radicalism":1  "Our  Dec- 
laration of  Rights  speak  the  language  and  the 
lessons  of  the  eighteenth  century."  The  people 
have  left  the  courts  to  go  on  trying  to  interpret 
twentieth-century  needs  in  the  terms  of  eighteenth- 
century  precedents  and  principles,  and  then  some 
persons  violently  censure  the  courts  because  they 
have  not  been  able  to  support  all  present  needs 
by  "ancient"  precedents  "in  existence  when  our 

1"The  American  Judiciary,"  by  Simeon  E.  Baldwin,  page  375 
(1905)- 


132      Majority  Rule  and  the  Judiciary 

constitutions  were  adopted"!  The  public  needs 
as  to  social  legislation  should  not  be  matters  of 
legal  precedent  at  all — they  depend  on  conditions 
of  fact  which  change  with  the  time,  the  locality, 
the  industrial  or  economic  environment,  the  con- 
science and  moral  standards  of  the  people,  their 
habits  of  life  and  thought,  and  a  thousand  other 
factors  as  complex  and  variable  as  American  life 
itself.  Yet  we  expect  our  courts  to  support  and 
justify  all  these  by  the  "ancient"  precedents  "which 
were  in  existence  when  our  constitutions  were 
adopted,"  as  the  New  York  court  said,  and  we 
would  criticise  our  courts  if  they  do  not  succeed 
with  reasonable  agility! 

The  principle  is  wrong.  Enlightened  public 
opinion,  and  not  dry  legal  precedents  from  the 
tomes,  should  be  chart  and  compass  in  deter- 
mining the  bounds  of  our  regulative  legislation. 
We  cannot  regulate  modern  gas  and  electrical 
corporations  by  decisions  rendered  in  the  days  of 
the  tallow  dip;  we  cannot  adequately  control 
four-track  steam  railroads  merely  by  the  law  of 
the  stage-coach  and  the  public  inn;  we  cannot 
be  content  to  have  our  labor  legislation  forever 
checked  and  thwarted  by  the  decisions  of  a  few 
men  out  of  the  many,  and  those  few,  not  men  of 
to-day,  accountable  in  any  way  to  their  fellows, 
but  dead  men,  who  lived  in  the  days  when  manu- 


Majority  Rule  and  the  Judiciary      133 

facture  was  carried  on  only  in  wholesome  towns 
and  villages,  on  a  small  scale  and  without  mod- 
ern "division  of  labor" — in  fact,  when  few  per- 
sons even  cared  whether  women  worked  long 
hours,  or  little  children  toiled  in  mines,  or  workers 
breathed  deadly  fumes  as  they  worked.  "An- 
cient" precedents  "in  existence  when  our  consti- 
tutions were  adopted"?  Of  course,  if  we  try  to 
find  in  1770  precedents  to  "sustain"  1912  legis- 
lation as  to  "sweat-shops"  or  "underground  bak- 
eries "  we  will  not  find  any,  for  there  were  no 
"sweat-shops"  or  "underground  bakeries"  then, 
and  no  one  would  have  cared  or  tried  to  pass 
laws  about  them  then  if  there  were.  Clothing, 
even  in  New  York  City,  was  then  made  only  by 
the  housewife  at  her  loom  near  the  fireplace  or 
by  the  "gentleman-tailor"  in  the  little  shop  in 
which  he  alone  worked.  "Sweat-shops"  were  un- 
heard of,  labor  unions  as  at  present  constituted  did 
not  exist,  bakeries  below  ground  were  unheard  of, 
street  railroads  and  subways  were  undreamed  of 
— yet  the  rule  of  precedent  in  "police  power" 
matters  means  the  constant  attempt  to  apply  this 
inadequate  yardstick.  And  present  conditions 
will  change,  probably,  just  as  much  or  more  in 
a  similar  period  of  time.  It  would  be  as  unsafe 
and  unjust  to  adopt  the  precedents  and  prevailing 
social  standards  of  to-day  as  binding  upon  to- 


134      Majority  Rule  and  the  Judiciary 

morrow.  Are  the  decisions  of  our  judges  as  to 
what  was  needed  yesterday  or  to-day  to  harass 
good  men  and  women  always?  If  we  amend  the 
constitution  every  time  a  controlling  precedent 
stands  in  the  way  of  meeting  a  present  need,  we 
have  not  met  the  situation.  The  language  of  to- 
day's amendment  to  the  "due  process"  clause 
may  not  at  all  suit  to-morrow's  condition,  but  may 
prove  a  worse  barrier  or  a  more  serious  source  of 
injustice  to-morrow.  Is  it  not  better  simply  to  let 
the  clause  stand,  and  let  the  people  vote  whether 
a  particular  statute  deemed  necessary  to-day  shall 
be  enforced  in  spite  of  the  court's  view  that  a 
reasonable  conception  of  "due  process"  inhibits 
the  enforcement  of  the  act  ?  Then,  if  changed  con- 
ditions call  for  some  different  policy  a  score  or  fifty 
years  hence,  the  same  course  is  open,  and  no  limita- 
tions of  an  amendment  that  could  not  foresee  all 
possible  future  conditions  has  been  set  up. 

Of  course,  if  the  scope  of  the  "police  power" 
is  determined  by  "the  great  public  needs,"  or 
"the  general  interests  of  the  community,"  or  "the 
prevailing  morality  and  strong  and  preponderant 
opinion,"  it  is  clear  that  the  domain  is  one  for 
ultimate  popular  discretion  rather  than  the  rule 
of  bench-made  precedents.  If  it  be  suggested  that 
too  much  emphasis  has  been  placed  upon  the  Fed- 
eral definition  of  the  "police  power,"  it  remains  to 


Majority  Rule  and  the  Judiciary      135 

point  out  that  even  under  the  most  circumscribed 
of  State  definitions  the  question  whether  a  par- 
ticular measure  is  reasonably  calculated  to  con- 
serve the  public  health,  safety,  or  morals  is  a 
question  not  of  law,  in  the  sense  of  legal  doctrines 
or  principles,  but  of  fact  under  the  particular 
conditions  to  which  it  applies.  What  is  required 
by  the  public  health,  morals,  and  safety  varies 
with  the  locality.  A  tenement-house  act  might 
seem  absurd  in  Arizona,  a  statute  regulating  the 
grazing  of  sheep  might  seem  absurd  in  Greater 
New  York.  Or  it  may  vary  with  the  time.  A 
law  regulating  the  hours  of  labor  in  canneries 
would  have  been  laughed  out  of  the  legislature 
or  the  courts  seventy  years  ago,  for  the  house- 
wife did  her  own  canning  in  the  wholesome  con- 
ditions of  her  own  kitchen;  yet  such  a  statute 
may  be  very  necessary  under  the  conditions  now 
obtaining,  for  example,  in  the  fruit-growing  re- 
gions of  central  New  York.  Who  knows  better 
about  that — the  judges  or  the  people?  Judges 
are  chosen  because  they  are  upright  and  know  the 
law,  not  because  they  know  or  can  ascertain,  when 
they  are  sitting  in  a  busy  appellate  court,  whether 
unclean  and  tubercular  conditions  in  underground 
bakeries  could  affect  the  bread  after  it  is  baked. 
We  do  not  stipulate,1  as  essential  qualifications 
for  election  or  appointment  to  the  judiciary,  that 


136      Majority  Rule  and  the  Judiciary 

candidates  shall  have  first-hand  familiarity  with 
industrial  or  economic  or  social  conditions  and 
phenomena,  but  with  the  law.  We  do  not  select 
our  judges  because  of  a  belief  that  they  have  the 
soundest  notions  of  governmental  policy  and  states- 
manship— men  with  these  qualifications  are  desig- 
nated to  legislative  or  administrative  positions. 
Is  it  not  all  wrong  to  require,  or  permit,  our  judges 
to  pass  upon  such  matters,  in  the  guise  that  they 
are  thereby  dealing  with  questions  of  law?  Was 
not  the  New  York  court  right  in  declaring  that 
the  appeal  for  a  broad  and  progressive  scope  of 
the  "police  power"  is  "an  appeal  which  should 
be  made  to  the  people  and  not  to  the  courts"? 

If  it  be  suggested,  however,  that  this  disavowal 
of  the  doctrine  of  stare  decisis  as  to  matters  of  the 
regulative  powers  of  government  is  novel  or  un- 
precedented doctrine,  reference  may  be  made  to 
the  opinion  of  Mr.  Justice  Moody  in  the  Em- 
ployers' Liability  Cases,1  in  the  Supreme  Court 
of  the  United  States,  the  eloquent  opinion  of 
Mr.  Justice  Cooley,2  in  the  Supreme  Court  of 
Michigan,  the  opinion  of  Mr.  Justice  Mathews 
in  the  celebrated  case  of  Hurtado  v.  California* 
also  in  the  Supreme  Court  of  the  United  States, 

1  207  United  States  Reports,  page  463. 

2  People  ex  rel.  Le  Roy  v.  Hurlbut,  et  at.,  24  Michigan   Reports, 
page  44;  quoted  at  page  130,  ante. 

3  no  United  States  Reports,  page  516;  quoted  at  page  60,  ante. 


Majority  Rule  and  the  Judiciary      137 

and  to  the  learned  opinion  of  Chief-Justice  Wins- 
low,  of  Wisconsin,  one  of  the  greatest  of  Ameri- 
can judges,  upholding  as  "constitutional"  a  Work- 
ingmen's  .Compensation  Act,  in  the  course  of 
which  he  said:1 

A  constitution  is  a  very  human  document,  and 
must  embody  with  greater  or  less  fidelity  the 
spirit  of  the  time  of  its  adoption.  It  will  be 
framed  to  meet  the  problems  and  difficulties  which 
face  the  men  who  make  it,  and  it  will  generally 
crystallize  with  more  or  less  fidelity  the  political, 
social,  and  economic  propositions  which  are  con- 
sidered irrefutable,  if  not  actually  inspired,  by 
the  philosophers  and  legislators  of  the  time;  but 
the  difficulty  is  that,  while  the  constitution  is 
fixed  or  very  hard  to  change,  the  conditions  and 
problems  surrounding  the  people,  as  well  as  their 
ideals,  are  constantly  changing.  The  political  or 
philosophical  aphorism  of  one  generation  is  doubted 
by  the  next,  and  entirely  discarded  by  the  third; 
the  race  moves  forward  constantly  and  no  Canute 
can  stay  its  progress. 

When  an  eighteenth-century  constitution  forms 
the  charter  of  liberty  of  a  twentieth-century  gov- 
ernment, must  its  general  provisions  be  construed 
and  interpreted  by  an  eighteenth-century  mind 
surrounded  by  eighteenth-century  conditions  and 
ideals?  Clearly  not.  This  were  a  command  to 
halt  the  race  in  its  progress,  to  stretch  the  state 

1  Borgnis,  v.  The  Falk  Co.,  147  Wisconsin  Reports,  page  327,  at  page 
348,  et  seq  (1911).  That  this  doctrine  is  to  be  deemed  to  apply  only 
to  "  due  process  "  and  "  police  power  "  determinations,  see,  espe- 
cially, concurring  opinions  of  Marshall,  J.,  and  Barnes,  J. 


138      Majority  Rule  and  the  Judiciary 

upon  a  veritable  bed  of  Procrustes.  Where  there 
is  no  express  command  or  prohibition,  but  only 
general  language  or  policy  to  be  considered,  the 
conditions  prevailing  at  the  time  of  its  adoption 
must  have  their  due  weight;  but  the  changed  so- 
cial, economic,  and  governmental  conditions  of 
the  time,  as  well  as  the  problems  which  the  changes 
have  produced,  must  also  logically  enter  into  the 
consideration  and  become  influential  factors  in 
the  settlement  of  problems  of  construction  and 
interpretation. 

These  general  propositions  are  here  laid  down, 
not  because  they  are  considered  either  new  or  in 
serious  controversy,  but  because  they  are  believed 
to  be  peculiarly  applicable  to  a  case  like  the 
present,  where  a  law  which  is  framed  to  meet 
new  economic  conditions  and  difficulties  resulting 
therefrom  is  attacked  principally  because  it  is 
believed  to  offend  against  constitutional  guaran- 
ties or  prohibitions  couched  in  general  terms,  or 
supposed  general  policies  drawn  from  the  whole 
body  of  the  instrument. 


XI 

THE    CONSERVATISM    AND    PRACTICAL 

ADVANTAGES  OF  THIS  METHOD  OF 

"POLICE  POWER"  DEFINITION 

The  question  for  which  every  reader  will  expect 
to  find  a  direct  and  definite  answer  in  this  volume 
may  be  stated  thus:  "What,  if  any,  are  the  actual 
and  substantial  advantages  to  be  gained  by  the 
adoption  of  Mr.  Roosevelt's  proposal  as  compared 
with  reliance  merely  upon  continued  efforts  to  util- 
ize the  present  method  of  'general  amendment* 
to  accomplish  the  same  legislative  ends?"  That 
is  a  fair  question,  and  it  is  a  question  by  which 
the  advocates  of  the  method  under  discussion 
could  afford  to  stand  or  fall.  In  a  previous  chap- 
ter1 it  has  been  pointed  out  that  the  "general 
amendment"  method  has  very  commonly  broken 
down  in  practice  and,  in  not  a  few  cases,  has 
proved  a  weapon  which  the  people  were  either 
unable  or  reluctant  to  use,  even  to  accomplish 
ends  which  decisive  and  persistent  popular  ma- 
jorities have  desired.  In  other  instances,  consti- 
tutional amendments  have  been  adopted,  in  the 

1  Chapter  VII,  page  98,  especially  at  page  100,  et  seq.,  ante. 
139 


140      Majority  Rule  and  the  Judiciary 

interests  of  particular  legislation,  and  the  elector- 
ate has  subsequently  found  that  the  action  taken 
was  altogether  too  sweeping  or  that  wholly  un- 
foreseen results  had  followed  from  judicial  inter- 
pretation of  the  language  of  the  "specific"  provi- 
sion adopted.  Has  Mr.  Roosevelt's  proposal  any- 
thing to  offer?  If  sound  in  principle,  can  it  also 
be  justified  as  more  suitable  than  the  "general 
amendment"  method  as  applied  to  cases  involv- 
ing advanced  economic  legislation,  and  therefore 
both  more  conservative  and  more  effectual? 

Is  not  direct  popular  determination  that  a  partic- 
ular act  is  within  the  "police  power"  a  more  con- 
servative method  than  the  amendment  of  the  consti- 
tution in  general  terms  to  accomplish  that  concrete 
result  ?  As  has  already  been  pointed  out,  the 
use  of  the  amendment  method,  where  the  phrase- 
ology of  the  constitutional  provision  no  longer 
represents  the  majority  opinion,  is  one  thing;  the 
attempted  utilization  of  the  same  method  in 
"police  power"  and  "due  process"  definition  is 
quite  another;  for,  as  the  United  States  Supreme 
Court  well  declared,  "the  police  power  is,  and 
must  be  from  its  very  nature,  incapable  of  any 
exact  definition  or  limitation."  In  the  one  class 
of  cases  it  has  been  the  letter  of  the  law,  the 
explicit  enactment  of  the  people  in  their  last 
declaration  of  fundamental  law,  that  stands  in 


Majority  Rule  and  the  Judiciary      141 

the  way  of  desired  legislation,  and  accordingly  it 
follows  that  the  phraseology  of  the  existing  con- 
stitutional provision  may  best  be  changed  by 
amendment  or  repeal.  In  the  other  class  of  cases 
it  has  been,  not  the  wording  of  the  constitutional 
provision,  but  the  political  philosophy,  economic 
creed,  social  standards,  and  breadth  of  view-point 
of  the  particular  judge  or  judges  that  has  barred 
the  way  to  the  desired  legislation;  the  people 
have  no  desire  or  need  to  repeal  or  amend  the 
"due  process"  clause,  but  only  to  accomplish  the 
substitution  of  the  prevalent  standards  for  the 
incorrect  conceptions  of  the  judges.  That  is  why 
the  method  of  adopting  amendments  in  general 
terms  to  cure  judicial  misconceptions  under  the 
"police  power"  may  be  said  to  be  unsuited  to  the 
actual  needs  of  such  situations — any  means  of 
dealing  merely  with  the  particular  act  and  the 
particular  misconception  in  relation  thereto  would 
seem  to  be  more  suitable  and,  at  the  same  time, 
entirely  sufficient.  Would  not  the  latter  method 
be  also  the  more  conservative  and  the  less  sweep- 
ing and  the  less  drastic? 

If  a  State  court  now  rejects  under  the  "due 
process"  clause  a  statute  which  the  Supreme 
Court  would  uphold  under  that  same  clause,  those 
interested  in  the  reinstatement  of  the  act  set  about 
securing  a  constitutional  amendment,  to  be  sub- 


142      Majority  Rule  and  the  Judiciary 

mitted  to  the  people  after  a  specified  period  of 
deliberation,  for  adoption  or  rejection  by  a  ma- 
jority vote  of  the  electors  taking  part  in  the  "ref- 
erendum"  thereon.     For   example,   if  the   State 
court  of  ultimate  appeal  holds  an  eight-hour  law 
for   bakeries   "unconstitutional'*  for   the   reason 
that  it  violates  the  "due  process"  clause  and  no 
other,  the  trades-unions  of  bakers  and  the  civic 
organizations  interested  in  the  welfare  of  workers 
in   bakeries,   and   other  interested   persons,   pro- 
ceed to  have  the  people  vote  upon  the  addition 
of  an  amendment  that  "nothing  in  this  section 
contained   shall  prevent  the  enactment  of  laws 
regulating  the  hours  of  labor  in  industrial  or  man- 
ufacturing trades  and  employments."     Or,  if  an 
employers'   liability  or  workingmen's  compensa- 
tion  statute   is   rejected,   the   trades-unions,   the 
civic  organizations,  and  progressive  employers  of 
labor  set  about,  through  their  attorneys,  securing 
the  popular  adoption  of  a  constitutional  amend- 
ment that  "nothing  in  this  section  contained  shall 
be  construed  to  prevent  the  enactment"  of  em- 
ployers' liability  or  workingmen's  compensation 
legislation.     If   such  an  amendment  is  adopted 
by    the   majority  of  the  voters    taking  part  in 
the  "referendum"  upon  the  proposed  amendment, 
the  act  originally  held  "unconstitutional"  is  re- 
enacted,  in  the  same  or  such  modified  form  as  the 


Majority  Rule  and  the  Judiciary      143 

legislature  may  see  fit.     But  what  has  been  done? 
At  least  three  things: 

First. — The  way  has  been  cleared,  not  only  for 
the  re-enactment  of  that  particular  act,  but  also 
for  the  enactment  of  any  other  act  dealing  with  that 
subject.  That  is  to  say,  the  legislature  may  there- 
upon enact  any  other  act  regulating  the  hours  of 
labor;  for  example,  an  act  prescribing  an  eight- 
hour  work-day  or  a  six-hour  work-day,  or  an  act 
regulating  the  hours'of  labor  in  trades  other  than 
bakeries,  or  in  all  trades  and  employments.  Or, 
if  the  amendment  dealt  with  workmen's  compen- 
sation or  employers*  liability  for  injuries  to  em- 
ployees in  the  course  of  their  employment,  the 
way  is  thereby  cleared  for  any  kind  of  an  em- 
ployers' liability  or  workingmen's  compensation 
law,  drastic  and  objectionable  though  it  may  be. 
Judicial  rejection  of  a  wisely  drawn  and  conserv- 
ative law  may  thus  let  down  the  bars  for  what 
is  foolish,  crude,  and  fanatical.  And  as  to  any 
such  new  law,  the  State  courts  could  not  say  a 
word;  for,  after  a  constitutional  amendment  say- 
ing that  the  court  shall  not  construe  the  "due 
process"  clause  to  prevent  that  class  or  category 
of  legislation,  the  court's  power  to  do  or  say 
any  restraining  word  is  gone,  and  the  legislative 
will  has  become  omnipotent  without  any  direct 
expression  of  the  popular  will,  except  on  the  ques- 


144      Majority  Rule  and  the  Judiciary 

tion  whether  there  should  be  some  sort  of  legisla- 
tion of  that  character.  In  voting  on  the  general 
amendment,  the  people  doubtless  had  in  mind  the 
particular  law,  but  in  order  to  enable  its  reinstate- 
ment, the  amendment  method  requires  them  al- 
most necessarily  to  let  down  the  bars  altogether 
to  any  sort  of  a  law  of  that  general  class  and 
subject-matter.  That  will  be  just  the  potential, 
and  not  at  all  improbable,  effect  of  the  approach- 
ing popular  adoption  in  New  York  State  of  a  con- 
stitutional amendment1  to  overcome  the  result 
reached  in  the  Ives  case  as  to  a  workingmen's 
compensation  law.  The  amendment  was  drawn 
with  care  by  some  of  the  ablest  of  the  American 
bar,  with  the  eyes  of  the  country  upon  them;  yet 
an  examination  of  the  phraseology  of  this  pro- 
posed amendment,  as  quoted  in  full  later  in  this 
chapter,  will  disclose  that  it  certainly  would  take 
away  all  the  power  of  the  New  York  courts  to 
interpose  any  bar  or  barrier  to  any  sort  of  work- 
ingman's  compensation  legislation  an  erstwhile 
legislature  might  enact,  socialistic  and  foolish, 
crude  and  unjust,  unscientific  and  unworkable 
though  it  might  be.  The  law  drawn  by  the  Wain- 
wright  Commission^appointed  by  Governor  Charles 
Evans  Hughes  was  concededly  most  skilful  and 
fair  and  scientific  in  its  provisions;  it  represented 

1  Pages  146  and  147,  post. 


Majority  Rule  and  the  Judiciary      145 

the  maximum  of  skill  in  draftsmanship  and  sound- 
ness in  substantive  provisions.  Yet  in  order  to 
enable  it  to  be  reinstated  on  the  statute  books  of 
the  State  it  is  necessary,  under  the  present  sc- 
called  "conservative"  method,  to  open  the  way 
equally  for  the  most  careless  and  casual  product 
of  an  "accidental"  legislature!  Another  concrete 
instance  of  the  same  thing  has  already  taken 
place  in  New  York.  After  the  New  York  Court 
of  Appeals  had  declared  "unconstitutional,"  with 
a  great  deal  of  uncertainty  and  frequent  realign- 
ments in  opinion,  various  phases  of  statutes  reg- 
ulating the  hours  of  labor  and  the  rate  of  wages 
on  the  work  of  municipal  contractors,  the  people, 
at  the  behest  of  organized  labor,  cut  the  Gordian 
knot  in  1905,  and  passed  a  constitutional  amend- 
ment which,  wisely  or  not,  has  enabled  the  legis- 
lature to  pass  any  sort  of  laws  it  pleases  as  to  the 
wages  or  hours  of  labor  of  the  employees  of  con- 
tractors engaged  in  municipal  work,  and  the  courts 
have  no  power  left  to  forbid  or  restrain.  Does 
not  the  existing  method  seem  somewhat  "radical" 
and  "drastic"  when  applied  to  these  "police 
power"  matters?  It  will  be  noted  that  the  method 
of  amending  the  constitution  to  take  specified 
classes  or  kinds  of  legislation  out  of  the  inhibi- 
tion of  the  constitution  as  construed  by  the  court 
is  but  a  pro  tanto  taking  away  of  the  power  of 


146      Majority  Rule  and  the  Judiciary 

the  courts  to  hold  legislation  "unconstitutional." 
Each  such  amendment,  to  meet  the  emergency 
created  by  a  misconception  as  to  a  particular  law, 
withdraws  all  the  specified  class  of  legislation  from 
the  power  and  function  of  the  court  to  say  or  do 
anything  about  it  except  meekly  to  enforce  it. 
A  multiplicity  of  such  special  amendments,  as  in 
some  Western  States,  has  worked  a  substantial 
and  serious  impairment  of  what  has  been  con- 
ceded to  be  the  historic  prerogative  and  useful 
public  function  of  the  American  judiciary. 

Second. — By  the  adoption  of  a  constitutional 
amendment  creating  an  "exception"  to  the  oper- 
ation of  the  "due  process"  clause,  there  has  been 
drafted  upon  that  great  constitutional  guaranty 
a  provision  of  perhaps  ambiguous  and  unforeseen 
meaning,  which  may  rise  up  to  plague  the  people 
a  thousand  times  in  years  to  come.  An  instance 
is  the  proposed  New  York  amendment  as  to 
workingmen's  compensation  legislation,  already  re- 
ferred to: 

* 

Nothing  contained  in  this  constitution  shall  be 
construed  to  limit  the  power  of  the  legislature  to 
enact  laws  for  the  protection  of  the  lives,  health, 
or  safety  of  employees;  or  for  the  payment,  either 
by  employers  or  by  employers  and  employees,  or 
otherwise,  either  directly  or  through  a  State  or 
other  system  of  insurance,  or  otherwise,  of  com- 
pensation for  injuries  to  employees,  or  for  the 


Majority  Rule  and  the  Judiciary      147 

death  of  employees  resulting  from  such  injuries, 
without  regard  to  fault  as  a  cause  thereof,  and 
for  the  settlement,  with  or  without  trial  by  jury, 
of  issues  which  may  arise  under  such  legislation, 
or  to  provide  that  the  right  to  such  compensa- 
tion and  the  remedy  therefor  shall  be  exclusive. 

Many  of  the  ablest  members  of  the  American 
bar,  men  like  Mr.  Francis  Lynde  Stetson,  and 
Mr.  J.  Hampden  Dougherty,  and  Mr.  Joseph  P. 
Cotton,  Jr.,  have  worked  laboriously  and  patri- 
otically, with  the  aid  of  some  well-known  judges, 
to  frame  this  amendment.  Perhaps  no  amend- 
ment to  a  State  constitution  ever  received  so 
careful  and  skilful  scrutiny.  But  who  can  say 
with  certainty  what  even  this  most  carefully 
framed  amendment  may  some  day  be  held  to 
permit  or  prevent?  Even  its  authors  do  not 
agree  as  to  what  it  would  make  possible,  even 
now.  Some  sharp  public  discussions  have  taken 
place  and  some  profound  pamphlets  have  already 
been  written  by  men  closely  identified  with  the 
formulation  or  revision  of  it.  If  that  is  the  case 
now,  what  may  some  day  be  ingeniously  worked 
out  from  its  complicated  and  extended  phrase- 
ology to  apply  to  conditions  not  now  projected 
or  foreseen?  Does  not  also  this  phase  of  the 
matter  make  the  adoption  of  special  "constitu- 
tional exceptions"  to  meet  particular  judicial  mis- 


148      Majority  Rule  and  the  Judiciary 

conceptions   appear  a  far-reaching   and   extreme 
method  ? 

Third. — The  adoption  of  a  series  of  "constitu- 
tional exceptions"  to  meet  particular  decisions 
under  the  "due  process"  and  "police  power" 
clause  makes  the  Bill  of  Rights  in  the  State  con- 
stitutions a  patchwork  of  exceptions  and  provisos, 
and  puts  the  State  constitutions  in  the  position 
of  very  solemnly  saying  that  the  "due  process" 
clause  does  not  mean  a  lot  of  things  which  the 
highest  court  of  the  land  has  held  it  could  not 
possibly  mean!  The  New  York  State  constitu- 
tion will  be  in  just  that  position  when  the  work- 
ingmen's  compensation  amendment  above  quoted 
has  been  adopted,  and  is  already  in  that  position 
as  to  a  number,  of  other  matters!  The  "general 
amendment"  method  is  thus  unsuitable  and  too 
far-reaching  as  a  method  of  determining  the  in- 
terpretation of  the  "due  process"  clause.  After 
that  clause  declares  that  "no  person  shall  be  de- 
prived of  life,  liberty,  or  property  without  due 
process  of  law,"  it  seems  unfortunate  and  incon- 
gruous to  add  to  this  historic  guaranty  a  provi- 
sion, as  is  now  commonly  being  done  in  American 
States,  that,  in  effect,  "excepting,  however,  that 
this  section  shall  not  be  construed  to  prevent  the 
taking  of  the  property  of  an  employer  without 
'due  process/  if  his  employee  be  injured  in  the 


Majority  Rule  and  the  Judiciary      149 

course  of  his  employment,"  or  that  "excepting, 
however,  you  may  nevertheless  'take  the  prop- 
erty* of  an  employing  baker,  if  his  bakery  be 
underground,"  and  so  on.  This  creating  of  broad 
exceptions  to  the  historic  guaranty,  that  are  written 
in  as  such  upon  the  parchment  of  constitutional 
proviso,  seems  as  unfortunate  as  it  is  unsuitable 
for  the  achieving  of  the  essential  ends  sought. 
In  addition,  it  is  quite  unnecessary.  Yet  it  is 
commonly  being  said  that  Mr.  Roosevelt's  recent 
proposal  is  something  drastic  and  sweeping,  and 
that  the  usual  processes  of  general  amendment 
embody  a  conservative  and  prudent  procedure  to 
which  the  people  should  hold  fast! 

Is  not  the  suggested  mode  of  "referendum"  upon 
the  particular  act  essentially  the  more  constructive 
and  suitable  method  of  overcoming  judicial  obstruc- 
tion to  regulative  legislation  ?  Under  it  the  people 
would  vote  simply  upon  the  particular  act  and 
not  upon  anything  framed  in  general  terms.  The 
time  and  method  of  voting  would  be  in  the  pre- 
cise formula  now  in  vogue  for  popular  action 
upon  constitutional  amendments,  excepting,  prob- 
ably, a  slightly  greater  period  for  deliberation 
and  consideration  would  be  required  before  the 
vote  was  taken.  The  people  would  be  required 
to  pass  opinion  not,  as  now,  upon  a  legal  ab- 
straction, comprehensible  only  to  a  trained  mind, 


150      Majority  Rule  and  the  Judiciary 

if  to  any,  and  bearing  no  evidences  of  a  direct 
or  tangible  relation  to  anything  in  the  popular 
mind,  but  upon  a  concrete  and  particular  act 
of  remedial  legislation,  which  would  mean  a  defi- 
nite and  readily  explainable  thing  to  every  em- 
ployer and  to  every  employee.  Considering  the 
form  and  character  of  most  constitutional  amend- 
ments as  submitted  to  the  people  in  American 
States,  it  is  hardly  surprising  that  sometimes  more 
than  half  of  the  electors  do  not  undertake  to 
pass  upon  them  at  all.  The  "general  amend- 
ment" method  involves  a  battle  between  bat- 
teries of  experts  in  legal  terminology;  it  clut- 
ters the  constitutions  with  things  which  should 
be  in  statues,  and  it  fails  oftentimes  to  present 
anything  of  direct  and  effectual  appeal  to  the 
attention  of  the  electorate.  Does  any  one  have 
doubt  as  to  which  the  people  of  a  commonwealth 
could  more  intelligently  and  interestedly  pass 
judgment — Mr.  Stetson's  sonorous  amendment,1 
or  the  Wainwright  act  which  it  is  all  phrased  to 
make  possible  ?  Every  employer  would  know  just 
what  the  reinstatement  of  the  Wainwright  act 
would  mean  to  him  and  his  business,  as  to  the 
setting  aside  of  a  fund  for  the  compensation  of 
injured  employees.  Every  employee  would  un- 
derstand just  what  the  reinstatement  of  the  act 

1  Quoted  in  full  at  pages  146  and  147,  ante. 


Majority  Rule  and  the  Judiciary      151 

would  mean  to  him  should  he  be  injured  or  killed 
while  at  work.  Translated  thus  concretely  into 
the  terms  of  industrial  conditions  and  the  dollars 
and  cents  charged  against  the  cost  of  the  product 
or  service  and  paid  over  to  the  workman  or  those 
dependent  upon  him,  the  matter  would  also  be 
one  which  the  general  community,  the  purchaser 
and  the  consumer,  could  pass  intelligently  and  in- 
terestedly upon,  and  determine  whether  the  para- 
mountcy  of  the  public  interest  should  be  asserted 
to  the  end  that  these  things  should  hereafter  be. 
That  kind  of  a  "  referendum "  would  be  far  differ- 
ent than  summoning  the  voters  to  pass  upon  a 
legal  jargon  or  a  vague  platitude. 

At  the  same  time,  under  this  method  the  con- 
stitutional guaranties  would  not  be  limited  or  ex- 
cepted  from  or  changed  from  the  form  in  which 
they  have  existed  since  Magna  Charta.  Their 
prohibitions  would  be  no  less  general  in  terms. 
The  power  and  function  of  the  court  in  interpret- 
ing them  would  be  preserved.  There  would  be 
no  pro  tanto  taking  away  of  the  power  of  the  courts 
to  pronounce  legislation  "unconstitutional,"  as  is 
done  by  the  amendment  method.  If,  after  the 
people  had  voted  to  reinstate  a  particular  Work- 
ingmen's  Compensation  Act,  for  example,  the 
legislature  should  enact  a  different  and  more 
drastic  act,  the  court  would  still  have  all  its  pres- 


1 52      Majority  Rule  and  the  Judiciary 

ent  power  to  hold  this  latter  act  "unconstitu- 
tional," to  state  trenchantly  the  considerations  of 
law  and  policy  against  it,  and  to  refuse  it  any 
enforcement.  A  full  and  deliberate  public  dis- 
cussion and  a  popular  vote  thereon  would  then 
necessarily  take  place  before  the  act  as  adopted 
by  the  legislature  could  be  put  in  force,  and  it 
would  be  put  in  force  then  only  because  the 
people  had  specifically  so  willed  it.  And  if,  later, 
the  conditions  and  the  public  needs  changed,  or  the 
pendulum  of  public  opinion  swung  in  the  opposite 
direction  as  to  the  social  legislation  in  behalf  of 
which  the  "  referendum "  had  been  invoked,  the 
constitutional  guaranty  could  be  restored  to  all 
of  its  former  inhibition  by  the  simple  process  of 
the  popular  repeal  of  the  particular  statute. 

Do  not  these  considerations  lead  to  the  belief  that 
Judge  Grosscup1  and  Dean  Lewis  were  right  in 
saying  that  this  is  the  more  simple,  the  more 
suitable,  and  the  more  conservative  method  of 
dealing  with  the  situation  ? 

1  Pages  122  to  125,  ante. 


XII 

SOME  PRACTICAL  OBJECTIONS  TO  THIS 

METHOD  OF  "POLICE  POWER" 

DEFINITION  CONSIDERED 

Several  objections  that  are  urged  against  Mr. 
Roosevelt's  proposal  are  not  addressed  to  any 
underlying  principle,  but  relate  only  to  the  work- 
ing out  of  the  plan  in  practice.  These  objections 
may  be  briefly  considered: 

The  objection  that  the  plan  would  mean  (tthe  tyr- 
anny of  a  small  minority."  A  number  of  well- 
meaning  persons  have  taken  the  position  that 
they  cordially  approve  of  Mr.  Roosevelt's  pro- 
posal as  a  matter  of  principle  and  public  policy, 
but  that  they  are  obliged  to  oppose  its  adoption 
for  the  reason  that  in  practice  it  would  mean  mi- 
nority, rather  than  majority,  determination.  They 
frankly  concede  that  the  definite  will  of  a  decisive 
and  actual  majority  of  the  voters,  "deliberately 
formed,  consistently  adhered  to,  and  fairly  ex- 
pressed, should  determine  the  treatment  of  pub- 
lic affairs  in  all  branches,  even  the  judiciary,"  l 
but  they  fear  that  only  a  minority  of  the  elec- 

lNcw  York  Times  Editorial,  January  24,  1912. 
153 


154      Majority  Rule  and  the  Judiciary 

torate  would  control  the  result  of  the  popular 
"referendum."  That  objection  cannot  be  deemed 
well  taken.  In  the  first  place,  it  could  properly 
be  urged  against  nothing  other  than  a  loose  and 
unscientific  embodiment  of  the  principle,  so  far  as 
its  actual  operations  are  concerned.  Mr.  Roose- 
velt has  at  all  times  made  it  clear  that  he  favored 
such  provisions  as  would  ensure  the  fullest  popu- 
lar deliberation,  and  the  fullest  possible  expres- 
sion of  the  popular  will,  to  the  end  that  only  the 
well-considered  decision  of  an  undoubted  major- 
ity of  the  electorate  might  be  certified  by  the 
result  of  the  referendum.  It  would  be  quite  feas- 
ible, and  consistent  with  the  fundamental  prin- 
ciple involved,  that  the  working  plan  should  em- 
body such  safeguards  as  would  ensure  an  expres- 
sion of  the  opinion  of  a  clear  popular  majority. 
For  example,  the  objection  under  discussion  could 
in  no  way  be  urged  against  the  concrete  illustra- 
tion of  a  constitutional  amendment  to  carry  out 
Mr.  Roosevelt's  proposal,  which  was  set  out  in  a 
previous  chapter.1  In  the  second  place,  there  is 
no  more  implication  of  "minority  rule"  in  Mr. 
Roosevelt's  proposal  than  in  the  "general  amend- 
ment" method.  If  anything  there  is  less.  It 
rarely  happens,  in  New  York  State  or  in  other 
States,  that  anything  like  a  majority  of  the  elec- 

1  Page  1 15,  ante. 


Majority  Rule  and  the  Judiciary      155 

torate  is  polled  in  favor  of  the  adoption  of  a  sub- 
mitted constitutional  amendment.  When  voters 
are  called  upon  to  decide  as  to  the  merits  of  a 
constitutional  amendment  framed  in  general  terms, 
formidable  and  perhaps  unintelligible  in  its  legal 
phraseology,  and  bearing  no  tangible  relation  to 
any  measure  of  economic  relief,  it  often  happens 
that  less  than  a  majority  of  the  electors  vote  upon 
the  matter  at  all,  and  this  kind  of  a  minority 
vote  adopts  our  constitutional  amendments,  in  all 
but  a  few  States.  For  example,  in  New  York, 
under  the  cumbersome  "general  amendment" 
method,  it  has  several  times  happened  that  ap- 
proximately one-fourth  of  the  voters  taking  part 
in  a  particular  election  have  been  sufficient  to  en- 
graft upon  the  constitution  important  and  far- 
reaching  changes.  Such  a  condition  ought  not  to 
be  permitted  under  any  system  of  procedure,  but 
it  is  at  least  true  that  the  "general  amendment" 
method  has  encouraged  and  perpetuated  "minor- 
ity rule,"  and  that  "minority  rule"  under  Mr. 
Roosevelt's  proposal  would  be  less  objectionable 
for  the  reason  that  only  a  particular  statute  and 
not  the  creation  of  a  broad  exception  as  to  a 
class  or  category  of  legislation  would  be  passed 
upon.  Mr.  Roosevelt's  proposal  would  tend  to 
do  away  with  "minority  rule,"  in  that  it  would 
doubtless  be  coupled  with  requirements  making 


156      Majority  Rule  and  the  Judiciary 

a  decisive  popular  expression  the  essential  of  the 
effectiveness  of  the  referendum,  and  also  in  that 
it  would  encourage  general  participation  in  the 
referendum  by  affording  the  voters  something 
they  could  pass  more  intelligently  and  interestedly 
upon. 

The  objection  that  the  plan  is  stated  to  relate  only 
to  State  governments.  Some  persons  object  to  Mr. 
Roosevelt's  proposal  because  it  is  not  made  to 
apply  to  the  Supreme  Court  and  its  determina- 
tions as  to  "due  process."  They  think  that  it 
should  apply  to  the  Federal  courts.  Other  persons 
object  to  the  proposal  because  they  cannot  un- 
derstand why  it  is  not  advocated  as  to  the  na- 
tional government,  although  they  concede  that  it 
should  not  be.  It  is  simply  another  instance 
where  the  reasonable  course  seems  to  lie  between 
the  extremes  of  view.  The  plan  is  not  being  ad- 
vocated with  reference  to  the  Supreme  Court's 
"interpretation"  of  the  "due  process"  clause  for 
the  reason  that  it  does  not  seem  to  be  necessary 
that  it  should  so  apply.  Our  people  do  not  ad- 
vocate or  adopt  organic  changes  for  academic 
reasons  only.  The  Supreme  Court,  as  we  have 
seen,1  has  adopted  a  reasonable  and  progressive 
standard  as  to  what  legislation  is  permitted  by 
the  "due  process"  clause,  so  long  as  no  other 

159  et  seq.,  ante. 


Majority  Rule  and  the  Judiciary      157 

constitutional  provision  is  contravened.  As  to 
a  court  which  itself  adopts  correct  standards 
and  conceives  itself  bound  not  to  press  "the 
broad  words"  of  the  "due  process"  clause  to  "a 
dryly  logical  extreme,"  but  rather  to  give  efficacy 
to  "the  prevailing  morality  and  strong  and  pre- 
ponderant opinion"  as  to  what  is  "immediately 
and  greatly  necessary  for  the  public  welfare," 
there  is  less  reason  for  suggesting  a  constitutional 
change  to  accomplish  that  very  result!  The  ad- 
vocacy of  the  proposal  is,  of  course,  being  cen- 
tred in  those  commonwealths  where  it  is  needed. 
Should  there  ever  come  to  be  great  reason  and 
need  for  its  adoption  in  the  national  sphere,  as 
means  of  giving  effect  to  the  underlying  social 
conscience  of  the  people,  doubtless  it  would  then 
be  seriously  considered  in  that  connection.  There 
is  the  further  fact  to  be  noted  that  the  adoption 
of  such  a  plan,  in  some  or  many  States,  would 
afford  concrete  expressions  of  the  popular  will 
which  would  be  of  great  assistance  to  the  Supreme 
Court  and  progressive  State  courts  in  determin- 
ing the  "prevailing  social  morality"  and  "prepon- 
derant opinion"  as  to  particular  classes  of  meas- 
ures. 

The  objection  that  the  plan  would  subject  " police 
power"  legislation  to  the  "fitful  and  changing  im- 
pulses of  a  temporary  majority"  What  has  just 


158      Majority  Rule  and  the  Judiciary 

been  said  as  to  "minority  rule"  applies  with  equal 
force  in  this  connection.  The  objection  could 
have  any  merit  at  all  only  if  the  actual  details 
of  the  working  plan  contained  no  safeguards  to 
ensure  deliberate  and  consistent  popular  action. 
Certainly  the  period  of  popular  deliberation  ad- 
vocated by  Colonel  Roosevelt  is  much  greater 
than  that  required  for  the  adoption  of  broad  con- 
stitutional amendments  in  many  States  of  the 
West.  Certainly  no  popular  action  could  be  so 
"Changing"  as  the  course  of  judicial  decision,  in 
some  commonwealths,  in  respect  to  not  a  few 
questions  of  law,  nor  as  "fitful"  as  the  "chang- 
ing impulses"  of  some  executives  accustomed  to 
deplore  such  manifestations  in  others.  It  is  also 
true,  as  we  have  seen,1  that  popular  needs  vary 
with  the  time  and  vary  with  the  locality,  so  that 
some  elasticity  as  to  the  permissible  bounds  of 
"police  power"  legislation  is  essential  rather  than 
objectionable. 

The  objection  that  the  plan  would  open  the  way 
to  the  adoption  of  dangerous  and  "  confiscatory " 
legislation.  The  real  objection  of  persons  who  op- 
pose this  proposal  for  insincere  reasons  is  a  secret 
fear  that  the  plan  would  enable  the  adoption  of 
a  "radical"  programme  of  ill-considered  legislation. 
That  contention  might  have  had  some  public  force 

xPage  131  et  seq.,  ante. 


Majority  Rule  and  the  Judiciary      159 

ten  years  ago,  but  not  now.  Efforts  to  secure 
advanced  legislation  along  economic  lines  are  no 
longer  "socialistic"  or  "revolutionary";  these  ef- 
forts are  not  now  in  the  hands  of  "the  dangerous  and 
the  unsafe."  On  the  contrary,  many  of  the  ablest 
men  in  business  and  many  of  the  noblest  women 
in  American  home  life  are  giving  freely  of  their 
time,  and  energy,  and  money,  for  the  advance- 
ment of  those  just  and  proper  measures  of  social 
reform  which  still  receive  judicial  disapproval  in 
some  States.  Only  the  continuance  of  the  "gen- 
eral amendment"  method  presents  any  reasonable 
possibility  that  these  unselfish  and  constructive 
efforts  may  lead  to  anything  drastic  and  danger- 
ous. To  illustrate:  The  National  Manufacturers' 
Association — whom  no  one  will  accuse  of  being 
"confiscatory  "  in  its  aims — has  determined  it  to  be 
good  business  policy,  as  well  as  good  conscience, 
to  do  away  with  the  old  system  of  "negligence 
actions"  and  "claim  agents,"  and  have  a  scien- 
tific system  of  workingmen's  compensation,  under 
which  the  workingman  or  his  family  gets  the 
"compensation"  and  not  his  attorneys.  The  as- 
sociation is  co-operating  with  other  agencies  of 
public  opinion  in  securing  the  enactment  of  rea- 
sonable and  workable  laws  to  this  effect.  But 
the  association  would,  of  course,  not  favor  the 
enactment  of  crude,  careless,  and  "confiscatory" 


160      Majority  Rule  and  the  Judiciary 

legislation,  and  would  be  reluctant  to  make  that 
kind  of  legislation  possible.  In  New  York,  how- 
ever, to  secure  the  re-passage  of  the  fair  and  just 
act  drawn  by  the  Hughes  commission,  we  are  en- 
gaged in  the  taking  down  the  constitutional  barriers 
to  any  legislation  on  this  subject,  and  the  way  will 
be  cleared  for  the  most  careless  and  the  most 
drastic  law  which  a  "temporary"  legislative  ma- 
jority, with  the  aid  of  the  governor,  saw  fit  to 
pass.  No,  Mr.  Roosevelt's  proposal  would  not 
open  the  way  for  the  adoption  of  dangerous  and 
"confiscatory"  legislation,  but  it  would  make  it 
possible  to  put  in  force  just  and  sound  legislation 
without  opening  the  way  for  the  facile  adoption 
of  the  other  kind  the  following  year.  It  affords 
a  simple  and  direct  way  of  passing  concretely  upon 
measures  of  social  reform  which  press  for  solution; 
it  affords  the  way  of  considering  them  separately, 
specifically,  on  their  individual  merits  and  without 
relation  to  anything  else,  and  that  manner  of  pro- 
cedure is  certainly  "conservative"  and  not  "rad- 
ical." The  "conservatives"  may  as  well  meet 
these  issues  on  their  merits.  These  measures  must 
be  met  and  cannot  be  evaded.  Mr.  Roosevelt's 
proposal  furnishes  the  convenient  method  of  for- 
mulating and  passing  concretely  upon  the  issues 
of  this  coming  contest. 


XIII 

MR.  ROOSEVELT'S  PROPOSAL  AND  THE 
FUNDAMENTALS  OF  GOVERNMENT 

It  remains  to  consider  whether  there  is  any- 
thing essentially  repugnant  to  the  fundamentals 
of  republican  government  in  this  proposal  that,  as 
an  ultimate  or  potential  check  upon  judicial  mis- 
conceptions, the  deliberate  determination  of  a  de- 
cisive popular  majority  shall  be  made  "the  high- 
est authority"  concerning  the  enforcement  of  any 
desired  measure  of  advanced  economic  or  social 
legislation. 

Is  not  the  determination  of  such  matters  by  the 
ascertainment  of  "the  will  of  the  ultimate  sover- 
eignty" of  the  people  a  proposal  well  grounded  in 
the  fundamental  principles  of  republican  govern- 
ment? It  has  been  a  common  charge  that  there 
is  being  proposed  by  Mr.  Roosevelt  and  those 
who  hold  with  him  some  radical  subversion  of  the 
basic  principles  and  standards  of  the  American 
constitutional  system.  A  distinguished  educator1 
has  discussed  this  proposal,  among  others,  in  a 

'"Why   Should    We   Change  Our  Form  of   Government?"   by 
Nicholas  Murray  Butler  (Charles  Scribner's  Sons:  1912). 

161 


1 62       Majority  Rule  and  the  Judiciary 

vigorous  volume  entitled  "Why  Should  We 
Change  Our  Form  of  Government?" — as  though 
a  change  in  "form  of  government"  were  involved 
in  the  proposal  that  New  York  or  Illinois  should  be 
enabled  to  do,  upon  a  decisive  and  deliberate  vote 
of  their  electorate,  what  Wisconsin  or  Iowa  or  Ohio 
can  freely  do  without  any  such  vote!  Surely  there 
is  nothing  novel  or  destructive  in  the  conception 
that  a  question  of  the  regulative  powers  of  govern- 
ment, either  concrete  or  general,  may  be  referred 
to  and  determined  by  the  ascertained  "will  of  the 
ultimate  sovereignty  of  the  whole  country,"  or 
that  a  determination  of  a  court  as  to  the  scope 
of  the  regulative  powers  of  government  may  like- 
wise be  "corrected"  or  "reversed"  by  a  deliber- 
ate and  decisive  expression  of  the  popular  will, 
directly  or  through  the  representative  assemblies 
of  government.  Judicial  "decisions"  are  "re- 
versed" in  this  sense  very  frequently,  as  we  have 
seen. 

The  Supreme  Court  of  the  United  States  has 
seen  nothing  revolutionary  or  destructive  in  ac- 
cepting the  ascertained  "will  of  the  ultimate  sov- 
ereignty of  the  whole  country"  on  questions  of  the 
powers  of  government,  even  when  the  decisions 
of  that  court  are  "actually  reversed"  thereby. 
To  illustrate:  The  Supreme  Court  held,  early  in 
the  history  of  the  republic,  that  under  the  con- 


Majority  Rule  and  the  Judiciary      163 

stitution  an  individual  could  maintain  a  suit 
against  a  sovereign  State  in  the  courts  of  the 
United  States.  This  decision  created  "a  shock 
of  surprise"  *  throughout  the  land,  for  by  the  pre- 
vailing conceptions  the  non-suability  of  a  sov- 
ereign State  without  its  consent  was  an  essential 
element  of  its  sovereignty.  Those  who  held  this 
view  appealed  to  the  country  from  the  court,  and 
by  the  adoption  of  the  Eleventh  Amendment  it 
was  determined  that  thereafter  the  constitution 
should  not  be  construed  as  the  Supreme  Court 
had  construed  it.  The  language  of  the  amend- 
ment is  noteworthy — "the  judicial  power  of  the 
United  Stated  shall  not  be  construed  to  extend  to 
any  suit  in  law  or  equity,"  etc.  This  is  parallel 
with  what  the  people  of  New  York  are  about  to 
declare  as  to  workingmen's  compensation  legisla- 
tion and  the  "due  process"  section — "nothing 
contained  in  this  constitution  shall  be  construed 
to  limit  the  power  of  the  legislature,"2  etc.  These 
provisions  mean  nothing  more  or  less  than  defini- 
tion by  the  electorate;  and  concerning  the  provi- 
sion quoted,  when  adopted  as  the  Eleventh  Amend- 
ment to  the  Federal  Constitution,  the  Supreme 
Court  of  the  United  States  said,  as  recently  as 
1890: 

1 134  United  States  Reports,  page  I,  at  page  n. 
"The   proposed   amendment  to   the   New  York   Constitution  is 
quoted  in  full  at  pages  146  and  147,   ante. 


164      Majority  Rule  and  the  Judiciary 

This  amendment,  expressing  the  will  of  the  ulti- 
mate sovereignty  of  the  whole  country,  superior  to  all 
legislatures  and  all  courts,  actually  reversed  the  de- 
cision of  the  Supreme  Court. 

In  order  that  there  may  be  clearly  seen  the 
equable  and  approving  spirit  in  which  the  Su- 
preme Court  itself  referred  to  this  explicit  "re- 
versal," by  a  referendum,  of  the  "decision"  it  had 
made  and  the  "interpretation"  which  it  had 
therein  given  to  the  constitution,  it  may  be  well 
to  quote  from  the  opinion  of  the  court  in  Hans 
v.  Louisiana1  where  the  court,  by  Mr.  Justice 
Bradley,  said,  concerning  the  earlier  "decision" 
so  "reversed": 

That  decision  was  made  in  the  case  of  Chis- 
holm  v.  Georgia  (2  Dall.  419),  and  created  such  a 
shock  of  surprise  throughout  the  country  that, 
at  the  first  meeting  of  Congress  thereafter,  the 
Eleventh  Amendment  to  the  constitution  was  al- 
most unanimously  proposed,  and  was  in  due  course 
adopted  by  the  legislatures  of  the  States.  This 
amendment,  expressing  the  will  of  the  ultimate 
sovereignty  of  the  whole  country,  superior  to  all 
legislatures  and  all  courts,  actually  reversed  the 
decision  of  the  Supreme  Court.  It  did  not  in 
terms  prohibit  suits  by  individuals  against  the 
States,  but  declared  that  the  constitution  should 
not  be  construed  to  import  any  power  to  author- 
ize the  bringing  of  such  suits.  .  .  .  The  Supreme 

1  134  United  States  Reports,  page  i,  at  page  n. 


Majority  Rule  and  the  Judiciary      165 

Court  had  construed  the  judicial  power  as  extending  to 
such  a  suit,  and  its  decision  was  thus  overruled.  .  .  . 
This  view  of  the  force  and  meaning  of  the 
amendment  is  important.  It  shows  that,  on  this 
question  of  the  suability  of  the  States  by  indi- 
viduals, the  highest  authority  of  this  country  was 
in  accord  rather  with  the  minority  than  witfy  the 
majority  of  the  court  in  the  decision  of  the  case 
of  Chisholm  v.  Georgia,  and  this  fact  lends  addi- 
tional interest  to  the  able  opinion  of  Mr.  Justice 
Iredell  on  that  occasion.  The  other  justices  were 
more  swayed  by  a  close  observation  of  the  letter 
of  the  constitution  without  regard  to  former  ex- 
perience and  usage.  .  .  .  Looking  backward  from 
our  present  stand-point  at  the  decision  in  Chis- 
holm v.  Georgia,  we  do  not  greatly  wonder  at  the 
effect  which  it  had  on  the  country.  .  .  .  Looking 
at  the  subject  ...  as  Mr.  Justice  Iredell  did,  in 
the  light  of  history  and  experience  and  the  estab- 
lished order  of  things,  the  views  of  the  latter  were 
clearly  right,  as  the  people  of  the  United  States 
in  their  sovereign  capacity  subsequently  decided. 

Not  only  did  the  court  write  so  affably  about 
the  "actual  reversal"  of  its  decisions  by  "the 
people  in  their  sovereign  capacity,"  even  going  so 
far  as  to  indicate  the  court's  mature  view  to  be 
that  "the  highest  authority  in  the  country"  had 
been  right  in  overruling  the  majority  and  sus- 
taining the  minority  of  the  court,  but  the  Supreme 
Court  also,  at  this  time  (1890),  when  its  atten- 
tion was  called  to  the  fact  that  the  particular 
question  of  jurisdiction  before  it  did  not  come 


1 66      Majority  Rule  and  the  Judiciary 

within  the  explicit  terms  of  the  constitutional 
prohibition,  held,  nevertheless,  that  as  it  was  clear 
that  the  people,  at  the  time  of  the  adoption  of 
the  Eleventh  Amendment,  had  meant  to  rule  and 
decide  that  the  court  should  not  construe  the 
constitution  to  mean  that  a  State  was  suable  with- 
out its  consent,  no  holding  should  be  made  which 
would  defeat  the  manifest  popular  will. 

A  writer  has  well  stated  the  fundamental  view 
as  to  the  essentials  of  republican  government  in 
this  respect — note  his  words  with  care: 

As  the  people  are  the  only  legitimate  fountain  of 
power,  and  it  is  from  them  that  the  constitutional 
charter,  under  which  the  several  branches  of  gov- 
ernment hold  their  power,  is  derived,  it  seems 
strictly  consonant  with  the  republican  theory,  to 
recur  to  the  same  original  authority,  not  only  when- 
ever it  may  be  necessary  to  enlarge,  diminish,  or 
new-model  the  powers  of  government,  but  also 
whenever  any  one  of  the  departments  may  com- 
mit encroachments  on  the  chartered  authorities 
of  the  others.  The  several  departments  being 
perfectly  co-ordinate  by  the  terms  of  their  com- 
mon commission,  none  of  them  can  pretend  to 
an  exclusive  or  superior  right  of  settling  the  boun- 
daries between  their  respective  powers;  and  how 
are  the  encroachments  of  the  stronger  to  be  pre- 
vented, or  the  wrongs  of  the  weaker  to  be  redressed, 
without  an  appeal  to  the  people  themselves,  who,  as 
the  grantors  of  the  commission,  can  also  declare 
its  true  meaning  and  enforce  its  observance? 


Majority  Rule  and  the  Judiciary      167 

Who  wrote  those  words?  Mr.  Roosevelt? 
Dean  Lewis?  No;  they  were  addressed  by  Alex- 
ander Hamilton,1  to  the  people  of  the  State  of  New 
York,  in  explaining  why  he  considered  a  sound 
principle  of  the  Virginian  constitution,  framed  by 
Thomas  Jefferson,  was  not  wholly  applicable  in 
the  Federal  sphere! 

Elisha  Mulford,  in  his  profound  volume,  "The 
Nation,"  published  just  at  the  close  of  the  war 
between  the  States,  clearly  summarized  the  spirit 
of  American  institutions  in  respect  to  matters  of 
legislative  power  and  policy:2 

The  opinions  of  the  judiciary  cannot  be  re- 
garded as  the  power  determinative,  in  its  ulti- 
mate action,  of  the  destination  of  the  State,  nor 
accepted  as  the  finality  in  its  course,  since  this 
would  be  inconsistent  with  its  existence  in  the 
realization  of  the  freedom  of  the  people.  .  .  . 
The  concession  to  the  judiciary  of  an  ultimate 
decision  in  the  political  sphere  would  be  the  ref- 
erence of  the  destination  of  the  State  to  a  power 
.  .  .  whose  action  is  a  precedent  which  is  pre- 
sumed to  be  final  and  beyond  reversal,  and  whose 
opinion  is  a  decision  from  which  there  is  no  ap- 
peal. Then  the  historical  progress  of  the  people 
would  no  longer  be  traced  in  the  better  institu- 
tion of  rights,  and  the  broader  freedom,  and  the 
more  varied  organization  of  its  powers,  but  in 
judicial  decisions  rendered,  it  may  be,  upon  feigned 
issues  and  pronounced  over  contending  litigants. 

1  "The  Federalist,"  Paper  No.  XLIX. 

2  "The  Nation,"  by  Elisha  Mulford,  page  203  (1870). 


1 68      Majority  Rule  and  the  Judiciary 

...  To  make  the  opinions  of  the  judiciary  a 
finality  in  the  political  order  would  fetter  the  free 
spirit  of  the  people,  confining  it,  not  in  the  as- 
sertion and  regulation  of  law  as  the  determina- 
tion of  the  organic  will,  but  in  the  conformance 
to  a  mere  legality.  The  past,  by  its  precedents, 
would  impose  its  authority  upon  the  present. 
The  energy  of  the  people  perishes  when  prece- 
dents become  the  substitute  for  the  action  of  a 
living  will  and  the  strength  of  a  living  spirit. 
.  .  .  The  formative  political  power  must  belong 
only  to  the  power  which  is  representative  of  the 
political  will. 

In  a  brilliant  address  before  the  Law  School  of 
the  University  of  Pennsylvania,  on  April  27,  1906, 
Chief  Justice  Walter  Clark,  of  the  Supreme  Court 
of  North  Carolina,  expressed  the  view  which  is 
held  by  an  increasing  number  of  jurists,  State 
and  Federal,  who  have  made  a  scholarly  and  can- 
did study  of  the  relations  of  the  courts  to  legis- 
lation. Said  Chief  Justice  Clark: 

The  vast  political  power  now  asserted  and  ex- 
ercised by  the  court  to  set  aside  public  policies, 
after  their  full  determination  by  the  legislature, 
cannot  safely  be  left  in  the  hands  of  any  body  of 
men,  without  supervision  or  control  by  any  other 
authority  whatever. 

What  "other  authority"  could  there  be,  under 
any  conformance  to  the  basic  principles  and  the 
traditions  of  our  form  of  government,  than  "the 
will  of  the  ultimate  sovereignty"  of  the  people, 


Majority  Rule  and  the  Judiciary      169 

"superior   to   all   legislatures   and   all   courts" — 
"the  highest  authority  in  the  land"? 

Nor  is  this  fundamental  principle  of  republican 
government,  so  vigorously  enunciated  by  jurists 
such  as  Mr.  Justice  Harlan1  and  Chief  Justice 
Walter  Clark,  and  by  publicists  such  as  Herbert 
Croly,2  anything  which  present-day  organs  of 
"conservative"  opinion  have  been  able  to  chal- 
lenge. The  New  York  Timesy  a  newspaper  which 
no  one  has  ever  suspected  of  "progressive"  ten- 
dencies, recently  said,  with  great  frankness:3 

That  the  definite  will  of  the  majority  of  the 
voters,  deliberately  formed,  consistently  adhered 
to,  and  fairly  expressed,  should  determine  the 
treatment  of  public  affairs  in  all  branches,  even 
the  judiciary,  is  the  fundamental  principle  of  de- 
mocracy. 

The  test  of  a  measure  is  often  its  alternatives. 
If  Mr.  Roosevelt's  proposal  is  not  adopted  as  a 
means  of  enabling  the  people  of  the  States,  within 
the  constitution,  to  put  in  force  the  advanced  eco- 
nomic legislation  which  they  need,  how  will  this 
be  brought  about,  if  at  all?  Answer  may  be  taken 
from  the  frank  admonition  uttered  by  Elihu  Root 
— chief  critic  of  Mr.  Roosevelt's  proposal — may 
the  method  suggested  by  the  senior  senator  from 

1  Page  79,  ante.  2  Page  75,  ante. 

\Editorial:  "In  the  Enemy's  Country,"  January  24,  1912. 


170      Majority  Rule  and  the  Judiciary 

New  York  be  deemed  more  likely  to  preserve  the 
stability  and  integrity  of  the  organic  law?  I 
quote  from  Mr.  Root's  now  famous  address  be- 
fore the  Pennsylvania  Society,  in  December,  1906: 

The  governmental  control  which  they  (the  people 
of  the  United  States)  deem  just  and  necessary, 
they  will  have.  It  may  be  that  such  control 
would  better  be  exercised  in  particular  instances 
by  the  governments  of  the  States,  but  the  people 
will  have  the  control  they  need  either  from  the 
States  or  from  the  national  government;  and  if 
the  States  fail  to  furnish  it  in  due  measure,  sooner 
or  later  constructions  of  the  constitution  will  be 
found  to  vest  the  power  where  it  will  be  exercised. 

If  Mr.  Roosevelt's  proposal  is  "radical,"  what 
shall  we  say  of  Mr.  Root's?  Is  it  consistent  with 
any  principle  of  our  government  to  leave  our  Fed- 
eral courts  to  find  "constructions  of  the  con- 
stitution, "  to  vest  in  the  national  government  the 
discharge  of  functions  which,  but  for  lack  of  a  suit- 
able enabling  procedure  under  the  State  constitu- 
tions, might  fittingly  be  fulfilled  by  the  States? 

It  remains  to  refer  briefly  to  the  contention 
that  the  proposal  under  consideration  would  in 
some  unexplained  way  destroy  or  impair  the  hon- 
orable estate  or  high  functions  of  our  judges  and 
our  courts.  The  epithets  applied  have  been  bit- 
ter— "judicial  vascetomy"  is  the  delicate  phrase 


Majority  Rule  and  the  Judiciary      171 

of  one  great  metropolitan  newspaper  * — but  the  ex- 
planations and  attempted  demonstrations  have 
been  a  looked-for  but  non-existent  feature  of  this 
campaign  of  loose  indictment.  Is  it  not  clear 
that  the  method  under  discussion  would  do  no 
such  thing,  but  that,  on  the  contrary,  it  would 
restore  and  strengthen  the  traditional  confidence 
of  our  people  in  our  courts,  by  removing  the  un- 
suitable system  which  has  caused  popular  resent- 
ment against  the  courts?  Can  we  destroy  our 
courts  by  restoring  them  to  full  popular  favor? 
Will  we  impair  their  functions  by  relieving  them 
of  an  ^ultimate  "guess"  as  to  something  which 
should  never  have  been  theirs  for  final  determina- 
tion at  all? 

Congressman  Gardner  of  Massachusetts  has  in- 
dicated with  peculiar  felicity  just  what  is  meant. 
In  an  address  in  the  national  House  of  Represen- 
tatives on  April  4,  1912,  after  arraigning  vigorously 
all  present  agitation  for  judiciary  reform  in  the 
United  States,  he  referred  to  the  "present  age  of 
Anglo-Saxon  discontent,"  and  reproachfully  asked:2 

Why  is  it  that  in  the  wave  of  change  that  has 
swept  over  England,  the  British  judges  and  Brit- 
ish courts  have  not  been  the  subject  of  attack? 
Why  should  discontent  manifest  itself  in  one  di- 
rection at  home  and  in  another  abroad? 

1  Brooklyn  Eagle,  June  2,  1912. 
1  New  York  Tribune,  April  5,  1912. 


172      Majority  Rule  and  the  Judiciary 

The  explanation  of  the  fact  upon  which  Con- 
gressman Gardner  accurately  commented  is  not 
far  to  seek.  In  the  midst  of  the  most  seething, 
bitter  discontent  that  has  swept  over  any  mod- 
ern people,  an  era  in  which  British  democracy 
has  been  throwing  off  the  fetters  of  an  earlier 
feudalism,  the  British  courts  have  stood  un- 
scathed, unchallenged,  undisturbed  in  their  ad- 
ministration of  justice  between  man  and  man, 
because  they  knew  and  every  one  knew  that  they  had 
no  power  to  interpose  any  barrier  to  the  sovereign 
will  of  the  people,  on  any  matter  of  governmental 
policy  or  political  philosophy!  No,  to  leave  the 
judiciary  free  from  the  sphere  of  political  or  legis- 
lative discretion  and  policy,  untrammelled  in  the 
administration  of  private  justice  and  the  enforce- 
ment of  the  sovereign  public  will,  destroys  neither 
the  independence  nor  the  integrity  of  the  courts, 
but  entrusts  to  them  their  highest  functions.  As 
was  so  impressively  said  by  Mr.  Justice  Hughes 
at  the  dinner  given  by  the  New  York  County 
Lawyers'  Association  upon  the  occasion  of  his 
elevation  to  the  nation's  great  court: 

It  is  in  any  community  and  under  any  system 
of  government  a  great  privilege  to  be  employed  in 
the  decision  of  controversies  between  man  and 
man.  It  is  a  high  function  to  be  an  arbiter  of 
justice.  The  sentiment  of  justice,  after  all  is  said, 


Majority  Rule  and  the  Judiciary      173 

is  the  most  important  sentiment.  But  in  a  de- 
mocracy the  highest  privilege  that  any  man  can  enjoy 
is  to  enforce  the  fundamental  will  of  the  people. 
Let  it  never  be  forgotten  that  the  constitution  is 
ordained  of  the  people  to  protect  the  people — to 
insure  government  by  the  people. 

There  are,  of  course,  those  who,  even  in  this 
republic  where  the  people  have  not  infrequently 
erred  in  their  choice  of  men,  but  have  rarely  erred 
in  their  adherence  to  principles  and  policies,  be- 
lieve that  in  a  field  of  decision  like  that  involved 
in  these  regulative  matters,  the  possibility  that 
the  people,  untrained  in  the  formulas  and  tradi- 
tions of  the  law,  might  ultimately  sit  in  judgment 
upon  the  public  soundness  of  a  determination 
reached  by  a  judge,  could  only  impair  the  effi- 
ciency and  independence  of  the  judiciary  and  con- 
fer upon  the  people  a  task  for  which  they  are  in 
no  wise  fitted  and  as  to  which  their  determina- 
tions could  have  neither  value  nor  safety.  This 
view  as  to  the  effect  of  submitting  such  matters 
to  ultimate  popular  scrutiny  was  well  answered 
by  a  distinguished  Federal  Judge — William  How- 
ard Taft — in  an  address  in  1895  before  the  Ameri- 
can Bar  Association: 

Nothing  tends  more  to  render  judges  careful 
in  their  decisions  and  anxiously  solicitous  to  do 
exact  justice  than  the  consciousness  that  every 


174      Majority  Rule  and  the  Judiciary 

act  of  theirs  is  to  be  submitted  to  the  intelligent 
scrutiny  and  candid  criticism  of  their  fellow  men. 
.  .  .  The  comments  made  by  learned  text-writers 
and  by  the  acute  editors  of  the  various  law  re- 
views upon  judicial  decisions  are  therefore  highly 
useful.  Such  critics  constitute  more  or  less  im- 
partial tribunals  of  professional  opinion  before 
which  each  judgment  is  made  to  stand  or  fall  on 
its  merits,  and  thus  exert  a  strong  influence  to 
secure  uniformity  of  decisions.  But  non-profes- 
sional criticism  is  by  no  means  without  its  uses, 
even  if  it  is  accompanied,  as  often  it  is,  by  a  di- 
rect attack  upon  the  fairness  and  motives  of  oc- 
cupants of  the  bench;  for  if  the  law  is  but  the 
essence  of  common-sense,  the  protest  of  many  aver- 
age  men  may  evidence  a  defect  in  a  legal  conclu- 
sion, though  based  on  the  nicest  legal  reasoning  and 
profoundest  learning. 

This  belief  in  the  essential  conservatism  and 
soundness  of  the  judgments  of  the  people  them- 
selves, when  the  affairs  and  policies  of  their  gov- 
ernment are  placed  before  them  for  consideration 
and  action,  was  never  put  more  impressively  in 
words  than  by  Mr.  George  Bancroft,  historian, 
scholar,  and  statesman,  in  an  address  before  the 
Adelphi  Society  of  Williams  College,  in  which  he 
said: 

The  best  government  rests  on  the  people  and 
not  on  the  few,  on  persons  and  not  on  property, 
on  the  free  development  of  public  opinion  and 
not  on  authority,  _  The  public  happiness  that  is 


Majority  Rule  and  the  Judiciary      175 

the  true  object  of  legislation  can  be  assured  only 
by  the  masses  of  mankind,  themselves  awakened 
to  a  knowledge  and  care  of  their  own  interests. 
The  world  can  advance  only  through  the  culture 
of  the  moral  and  intellectual  powers  of  the  people. 
To  accomplish  this  end  by  means  of  the  people 
themselves  is  the  highest  purpose  of  government. 

The  absence  of  the  prejudices  of  the  Old  World 
leaves  us  here  the  opportunity  of  consulting  inde- 
pendent truth,  and  man  is  left  to  apply  the  in- 
stinct of  freedom  to  every  social  relation  and  pub- 
lic interest.  Each  great  truth  is  firmly  grasped, 
comprehended,  and  enforced,  for  the  multitude  is 
neither  rash  nor  fickle.  In  truth,  the  multitude 
is  less  fickle  than  those  who  profess  to  be  its 
guides.  Political  action  has  never  been  so  con- 
stant and  so  unwavering  as  when  it  results  from 
a  feeling  or  a  principle  diffused  through  society. 
The  people  is  firm  and  tranquil  in  its  movements, 
and  necessarily  acts  with  moderation  because  it 
becomes  but  slowly  impregnated  with  new  ideas, 
and  effects  no  changes  except  in  harmony  with  the 
knowledge  which  it  has  acquired.  Besides,  where 
it  is  permanently  possessed  of  power  there  exists 
neither  the  desire  nor  the  occasion  for  frequent 
change.  The  government  by  the  people  is  in  very 
truth  the  strongest  government  in  the  world. 

There  may  be  those  who  scoff  at  the  sugges- 
tion that  the  decision  of  the  whole  is  to  be  pre- 
ferred to  the  judgment  of  the  enlightened  few. 
They  say  in  their  hearts  that  the  masses  are  ig- 
norant; that  farmers  know  nothing  of  legislation; 
that  mechanics  should  not  quit  their  workshops 
to  join  in  forming  public  opinion.  But  true  po- 
litical science  does,  indeed,  venerate  the  masses. 


176      Majority  Rule  and  the  Judiciary 

It  maintains  not,  as  has  been  perversely  stated, 
that  "the  people  can  make  right,"  but  that  the 
people  can  discern  right.  Individuals  are  but 
shadows,  too  often  engrossed  by  the  pursuit  of 
shadows;  the  race  is  immortal;  individuals  are 
of  limited  sagacity,  the  common  mind  is  infinite 
in  its  experience;  individuals  are  languid  and 
blind,  the  many  are  ever  wakeful;  individuals  are 
corrupt,  the  race  has  been  redeemed;  individuals 
are  time-serving,  the  masses  are  fearless;  indi- 
viduals may  be  false,  the  masses  are  ingenuous 
and  sincere;  individuals  claim  the  divine  sanc- 
tion of  truth  for  the  deceitful  conceptions  of  their 
own  fancies,  the  Spirit  of  God  breathes  through 
the  combined  intelligence  of  the  people.  Truth 
is  not  ascertained  by  the  impulse  of  an  individual; 
it  emerges  from  the  contradictions  of  present  opin- 
ions; it  raises  itself  in  majestic  serenity  above 
the  strifes  of  parties  and  the  conflicts  of  sects; 
it  acknowledges  neither  the  solitary  mind  nor  the 
separate  faction  as  its  oracle,  but  owns  as  its  only 
faithful  interpreter  the  dictates  of  pure  reason 
itself,  proclaimed  by  the  universal  voice  of  man- 
kind. It  is  when  the  multitude  give  counsel  that 
the  right  purposes  find  safety.  The  decrees  of 
the  universal  conscience  are  the  nearest  approach 
to  the  presence  of  God  in  the  soul  of  man. 

In  a  very  fundamental  sense,  this  proposal  for 
the  ultimate  supremacy  of  the  deliberate  popular 
will  in  all  which  pertains  to  what  government 
may  do  for  the  welfare  of  its  inhabitants,  repre- 
sents that  confidence  in  the  mature  common-sense 
of  the  people,  when  given  the  means  for  direct 


Majority  Rule  and  the  Judiciary      177 

and  concrete  expression,  which  must  be  the  foun- 
dation for  the  continuance  of  the  American  form 
of  government. 

"New  times  demand  new  measures  and  new  men." 


TABLE  OF  CASES 


PAGE 


Assaria  State  Bank  v.  Dolley,  219  U.  S.,  121 68 

Borgnis  v.  The  Falk  Co.,  147  Wise 327 

Budd  v.  New  York,  143  U.  S.,  517 57 

Camfield  v.  Brown,  167  U.  S.,  518 63 

Eakin  v.  Raub,  12  Sergeant  &  Rawle  (Pa.)  330 31 

Employers'  Liability  Cases,  207  U.  S.,  463 56,  136 

Hans  v.  Louisiana,  134  U.  S.,  1 77, 163,  164,  165 

Hurtado  v.  California,  no  U.  S.,  516 S3,  60,  136 

Ives  v.  South  Buffalo  Ry.  Co.,  201  N.  Y.,  271 44, 

45,  46,  57,  65,  66,  67,  73,  77,  85,  117,  121,  123,  127 

Lochner  v.  New  York,  198  U.  S.,  45 61 

Loring's  Case  (Mass.  Legislature:  1855) 84 

Marbury  v.  Madison,  I  Cranch  (U.  S.)  137 29 

Munn  v.  Illinois,  94  U.  S.,  1 13 57 

Noble  State  Bank  v.  Haskell,  219  U.  S.,  104 63, 

64,66,67,76,115,126 

People  ex  rel.  Cossey  v.  Grout,  179  N.  Y.,  417 77,  145 

People  ex  rel.  Le  Roy  v.  Hurlbut,  24  Mich.,  44 130,  136 

Rathbone  v.  Wirth,  6  App.  Div.  (N.  Y.),  277 74, 129,  130 

Second  Employers'  Liability  Cases,  223  U.  S.,  1 65 

Slaughter-House  Cases,  16  Wall  (U.  S.),  36 59, 74, 140 

Thorpe  v.  Rutland  &  Burlington  R.  R.  Co.,  27  Vt.  149 60 


179 


INDEX 


ARIZONA,  reasons  for  adoption  of 
"recall  of  judges,"  82 

BALDWIN,  SiMEpN  E.,  "The  Amer- 
ican Judiciary,"  quoted,  29,  131 

BANCROFT,  GEORGE,  address  before 
the  Adelphi  Society  of  Williams 
College,  quoted,  174,  175,  176 

BEARD,  CHARLES  A.,  "The  Supreme 
Court  and  the  Constitution," 
cited,  29,  n.;  "Documents  on  the 
State-wide  Initiative,  Referen- 
dum, and  Recall,"  cited,  80,  n. 

BRADLEY,  JOSEPH  P.,  opinion  in 
Hans  v.  Louisiana  as  to  "reversal " 
of  Supreme  Court's  decision  by 
adoption  of  Eleventh  Amend- 
ment, quoted,  77,  163,  164,  165, 
166 

BUTLER,  NICHOLAS  MURRAY,  "Why 
Should  We  Change  Our  Form  of 
Government?"  commented  on,  72 

CALIFORNIA,  reasons  for  adoption  of 
"recall  of  judges,"  82;  mode  of 
amending  constitution,  101 

CHILDS,  HENRY,  remarks  in  Massa- 
chusetts Constitutional  Conven- 
tion of  1820,  quoted,  89 

CLARK,  CHIEF  JUSTICE  WALTER, 
address  before  University  of  Penn- 
sylvania Law  School,  cited,  29,  n., 
93;  quoted,  168,  169 

CONSTITUTION  (United  States}: 
Amendments,  Articles  V  and  XIV, 
quoted,  48;  referred  to,  156; 
Amendments,  Article  XI,  pur- 
pose of  adoption,  77;  comment  of 
Supreme  Court  upon  "reversal" 
of  its  decision,  163-166;  Amend- 
ment XIV,  unimpaired  by  Federal 
interpretation,  no;  why  Mr. 
Roosevelt's  proposal  not  made  ap- 
plicable to  United  States  Supreme 
Court,  156,  157;  (New  York): 
Article  I,  Sections  2  and  18,  as 
illustrative  of  "specific"  provi- 
sions, 43-46;  Article  I,  Section  6, 
as  to  "due  process,"  quoted,  49; 


time  required  for  amendment,  il- 
lustrative form  of  amendment  to 
embody  Mr.  Roosevelt's  proposal, 
1 15-1 16;  proposed  amendment  to 
reverse  decision  in  Ives  case,  146, 
147;  effects  of  present  mode  of 
amendment,  143-152;  (Massa- 
chusetts): Chapter  III,  Articles  I 
and  II,  quoted,  85,  86;  "Declara- 
tion of  Rights,"  Sections  5  and  8, 
quoted,  89,  90 

"CONSTITUTIONAL  INITIATIVE,"  as 
a  mode  of  amending  the  Consti- 
tution, denned,  101 

COOLEY,  THOMAS  M.,  opinion  in 
People  ex  rel.  Le  Roy  v.  Hurlbut, 
quoted,  130  ;  referred  to,  136 

COR  WIN,  EDWARD  S.,  as  to  modern 
concept  of  "due  process,"  quoted, 
35 

CROLY,  HERBERT,  "The  Promise  of 
American  Life,"  quoted,  75;  re- 
ferred to,  169 

DICEY,  A.  V.,  "The  Law  of  the  Con- 
stitution," quoted,  28 

DOUGHERTY,  J.  HAMPDEN,  "Power 
of  Federal  Judiciary  Over  Legis- 
lation," cited,  29,  n.;  as  one  of 
framers  of  amendment  to  New 
York  constitution,  147 

DRED  SCOTT  DECISION,  as  in  con- 
flict with  social  conscience,  32, 33 

"DUE  PROCESS,"  Professor  E.  S.  Cor- 
win  as  to  modern  concept,  35;  as 
involved  in  present  issues,  40; 
constitutional  provisions  quoted, 
47,  48,  49;  Federal  c.  State  inter- 
pretation, 49-52;  defined,  52,  53, 
54;  early  State  and  Federal  view, 
54-5QJ  view  of  United  States 
Supreme  Court,  50-64;  view  of 
New  York  Court  of  Appeals,  65- 
69;  Mr.  Roosevelt's  proposal  for 
"popular  re-definition"  as  in  ac- 
cord with  historical  conception, 
131-138;  clause  of  Federal  consti- 
tution unaffected  by  Mr. 
velt's  proposal,  111-112 


181 


•182 


Index 


FREUND,  ERNST,  "The  Police  Pow- 
er," quoted,  62,  63 

GARDNER,  AUGUSTUS  P.,  address  in 
House  of  Representatives,  April  4, 
19 1 2,  quoted  and  commented 
upon,  171,  172 

GAYNOR,  WILLIAM  J.,  article  in 
Bench  and,  Bar,  April,  1912,  quoted, 
34,  41,  50,  102 

GIBSON,  MR.  JUSTICE,  on  power  to 
hold  legislation  unconstitutional, 

31 

GROSSCUP,  PETER  S.,  letter  in  ad- 
vocacy of  Mr.  Roosevelt's  pro- 
posal, quoted,  122.  123,  124,  125; 
commented  upon,  117,  152 

HAMILTON,  ALEXANDER,  "The  Fed- 
eralist," Paper  No.  XLIX,  quoted, 
166,  167 

HARLAN,  JOHN  M.,  quoted  as  to  ju- 
dicial usurpation,  78,  79;  referred 
to,  169 

HAYES,  ALFRED,  JR.,  as  to  power  to 
hold  legislation  unconstitutional, 
93 

HERRICK,  D.  CADY,  opinion  in  Rath- 
bone  v.  Wirth,  quoted,  1 29,  130 

HOLMES,  OLIVER  WENDELL,  as  jus- 
tice of  the  Supreme  Court,  50; 
opinion  in  Noble  State  Bank  v. 
Haskell,  quoted,  63,  64,  126,  128 

HUBBARD,  SAMUEL,  remarks  in  Mas- 
sachusetts Constitutional  Con- 
vention of  1820,  quoted,  87 

HUGHES,  CHARLES  EVANS,  as  signer 
of  Workmen's  Compensation  Act, 
45 ;  as  justice  of  the  Supreme 
Court,  50;  as  governor  who  ap- 
pointed Wainwright  commission, 
66;  address  before  New  York 
County  Lawyers'  Association, 
quoted,  172,  173 

IMPEACHMENT  OF  JUDGES,  as  an  al- 
ternative of  the  "recall  of  judges," 
83,84 

INCOME  TAX,  proposed  constitu- 
tional amendment,  78 

JUDICIAL  NOMINATIONS,  nomina- 
tion and  election  of  judges  apart 
from  party  columns  on  ballot,  83 

JUDICIARY  ACT,  commented  upon, 


JUDICIARY  REFORM,  tests  of  pending 
proposals,  40,  41;  the  "recall  of 
judges"  as  a  measure  of,  8 1,  82,  83 

LEWIS,  WILLIAM  DRAPER,  as  sponsor 
for  Mr.  Roosevelt's  proposal,  109, 
152,  167;  statement  in  advocacy 
of  Mr.  Roosevelt's  proposal, 
quoted,  120,  121,  122;  address  at 
The  Aldine  Club,  cited,  120 

LINCOLN,  ABRAHAM,  as  to  the  Dred 
Scott  decision,  quoted,  32,  33 

LINCOLN,  LEVI,  as  member  of  com- 
mittee on  judiciary  in  Massachu- 
setts Constitutional  Convention  of 
1820, 86;  reply  to  Mr.  Webster  and 
committee  report,  quoted,  88 

MclLWAiN,  CHARLES  H.,  "The 
High  Court  of  Parliament  and  its 
Supremacy,"  quoted,  94 

MARSHALL,  JOHN,  as  exponent  of 
progressive  interpretation,  31 

MASSACHUSETTS  CONSTITUTIONAL 
CONVENTION  OF  1820,  debates  in 
as  to  the  judiciary  and  "recall"  by 
legislature,  85,  86,  87,  88,  89,  90, 
91,  92 

MATHEWS,  STANLEY,  opinion  in 
Hurtado  v.  California,  quoted,  60; 
referred  to,  136 

MATHEWSON,  CHARLES  F.,  address 
at  The  Aldine  Club,  March  22, 
1912,  quoted  and  commented 
upon,  72 

MOODY,  WM.  HENRY,  as  justice  of 
the  Supreme  Court,  50;  opinion 
in  Employers'  Liability  Cases, 
quoted,  55;  referred  to,  136 

MULFORD,  ELISHA,  "The  Nation," 
quoted,  167 

NATIONAL  MANUFACTURERS'  ASSO- 
CIATION, advocacy  of  workmen's 
compensation  legislation,  159,  160 

New  York  Times,  March  23,  1912, 
quoted  as  to  address  of  Charles  F. 
Mathewson,  73;  editorial,  Jan- 
uary 24,  1912,  quoted,  153,  169 

OHIO  CONSTITUTIONAL  CONVENTION, 
address  of  Theodore  Roosevelt,  100 

OKLAHOMA  BANK  GUARANTY  LAW, 
Opinion  of  Supreme  Court  in 
Noble  State  Bank  v.  Haskell, 
quoted,  63,  64;  argument  of 
counsel  in  Ives  case,  66,  67 


Index 


183 


ORTON,  JESSE  F.,  article  in  The  Inde- 
pendent, August,  1912,  cited,  53 

PENNSYLVANIA,  reasons  for  adoption 
of  "  recall  of  judges,"  82 ;  mode  of 
amending  constitution,  101 

PHILLIPS,  WENDELL,  argument  in 
Loring's  Case,  quoted,  84,  90 

"POPULAR  RE-DEFINITION  OF  'PO- 
LICE POWER'  SCOPE",  inaccuracy 
of  term  "recall  of  judicial  deci- 
sions," 99,  100,  107,  108,  109; 
what  the  proposal  is  not,  109-114; 
what  the  proposal  is,  114-118; 
concrete  illustration  of  the  meth- 
od, 115-118 

PRENDERGAST,  WM.  A.,  as  to  direct 
popular  accountability,  quoted,  85 

PROGRESSIVE  MOVEMENT,  defined, 
40 

RECALL  OF  JUDGES,  proposal  denned, 
80-8 1 ;  considered  as  a  mode  of 
correcting  judicial  misapprehen- 
sion of  "police  power"  scope,  81- 
92;  as  contrasted  with  Mr.  Roose- 
velt's proposal,  112-113 

"RECALL  OF  JUDICIAL  DECISIONS" 
(See  "Popular  Re-definilion  of 
'  Police  Power '  Scope  ") 

ROOSEVELT,  THEODORE,  Elihu  Root 
quoted  concerning,  37;  proposal 
of  direct  popular  "re-definition" 
of  "police  power,"  100;  proposal 
defined  and  illustrated,  107-118; 
Carnegie  Hall  address  quoted, 
114;  Dean  Lewis  quoted  concern- 
ing, 120-122;  Judge  Grosscup 
quoted  concerning,  122-125;  prac- 
tical advantages  of  Mr.  Roose- 
velt's proposal  stated,  139-152; 
proposal  tested  by  fundamentals 
of  government,  163-177 

ROOT,  ELIHU,  address  before  New 
York  State  Bar  Association,  Jan- 
uary, 1912,  quoted,  36,  37;  ad- 
dress before  Pennsylvania  Society, 
December,  1906,  quoted,  169, 170; 
advocacy  of  constitutional  amend- 
ment to  "reverse"  income-tax  de- 
cision of  Supreme  Court,  78 

SHAW,  CHIEF  JUSTICE,  as  member 
of  Massachusetts  Constitutional 
Convention  of  1820,  86 

STETSON,  FRANCIS  LYNDE,  as  one  of 


framers  of  amendment  to  New 
York  constitution,  147,  150 
STORY,  JOSEPH,  as  chairman  of  com- 
mittee on  judiciary  in  Massa- 
chusetts Constitutional  Conven- 
tion of  1820,  86;  reply  to  Levi 
Lincoln  and  Henry  Childs,  90,  91 

TAFT,  WILLIAM  HOWARD,  address 
before  American  Bar  Association 
in  1895,  quoted,  173,  174 

The  Boston  Advertiser,  Proceedings 
of  Massachusetts  Constitutional 
Convention  of  1820,  quoted,  86, 
87,  88,  89,  90,  91 

The  Outlook,  articles  by  Theodore 
Roosevelt,  cited,  37,  100,  114 

TRICKLETT,  WILLIAM,  as  to  power  to 
hold  legislation  unconstitutional, 
93;  article  in  "American  Law 
Review,"  1906,  quoted,  95,  96 

WEBSTER,  DANIEL,  remarks  in  Mas- 
sachusetts Constitutional  Con- 
vention of  1820,  quoted,  87;  com- 
mented upon,  91 

WERNER,  WILLIAM  E.,  opinion  in 
Ives  v.  South  Bujfalo  Railway 
Company,  quoted,  66 

WHITE,  EDWARD  D.,  as  chief  justice 
of  the  Supreme  Court,  50, 109 

WILCOX,  DELOS  F.,  "Government 
by  All  the  People,"  cited,  80,  n. 

WINSLOW,  CHIEF  JUSTICE,  opinion 
as  to  constitutionality  of  Wiscon- 
sin Workmen's  Compensation  Act, 
quoted,  137,  138 

WISCONSIN,  Workmen's  Compensa- 
tion Act  held  constitutional, 

J37 

WORKMEN'S  COMPENSATION  ACT,  as 
affected  by  New  York  constitu- 
tion, Section  18,  Article  I,  44;  as 
affected  by  New  York  constitu- 
tion, Section  2,  Article  I,  45,  46; 
considered  in  Light  of  early  con- 
ception of  "police  power,"  57,  58; 
decision  of  New  York  Court  of 
Appeals  in  Ives  Case,  65-68;  de- 
cision of  United  States  Supreme 
Court  in  Second  Employers'  Lia- 
bility Cases,  65;  application  of 
Mr.  Roosevelt's  proposal  to,  117, 
121,  123,  124,  142,  144,  146,  150, 
159,  160;  Wisconsin  act  held  con- 
stitutional, 137,  138 


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